(concurring):
I concur with Mr. Justice Dowling that the proof required the submission of the question of the defendants’ negligence to the jury. The defendant railroad company was a / common carrier and the plaintiff was a passenger. The maxim res ipsa loquitur applied, and this, in connection with the evidence, would justify the jury in finding that the defendant railroad company was negligent. As to the hotel company, no such relation existed between it and the plaintiff. It maintained, however, a structure abutting upon a way or' road that was used as a public street. The public had a right to the use of that street, and the hotel company was bound to see to it that neither its structure nor the use to which any part of it should be put would injure a person lawfully upon the street. It could not maintain for its own purposes a curtain with a pipe of this character to hold it down without its being so securely fastened that it could not blow out upon the street and injure a person lawfully there without responsibility for an injury caused thereby. The evidence is undisputed that the plaintiff was riding in a street car that passed the hotel premises, and *812while there an appliance upon the defendant’s premises for some cause blew out and a pipe attached to that appliance struck the plaintiff and injured her. Whether or not such an accident was an unavoidable- one, or could be prevented by the exercise of proper care by the hotel company was a question for the jury, and I, therefore, concur in the reversal of the judgment as against both defendants.
Scott, J., concurred.
judgment reversed and new trial ordered, costs to appellant to abide event.