It must be conceded that if. the pier, where the accident occurred, was in an unsafe condition at the time it was leased. May 1, 1865 ; that the possession of the pier by other parties, under a lease from the defendants, will not afford a defense against a claim upon them for injury arising from such defect.
*147The question of the condition of the pier at this time was submitted to the jury, and an exception thereto was taken by the defendants' counsel.
The accident occurred in July, 1866, and an examination afterwards proved that timbers, not previously in sight, were very much decayed. There was an unusual weight of freight placed upon the pier, but the accident would not have happened had these timbers been sound.
There was no direct evidence as to. the condition of the timbers May 1, 1865, when the possession was delivered to the tenant, but it was assumed by the learned judge that it might be inferred from general knowledge of the length of time required for wood to become rotten.
It was said by the judge in substance that it could not occur in the time intervening between the making of the lease and the happening of the accident. The only evidence bearing upon the subject was that it would require the lapse of fifteen years before such timbers would become so rotten.
I think it was impossible that the conclusion reached by the jury can be sustained by such evidence, and that the court erred in submitting the enquiry which he did.
The timbers might have been sufficiently sound when the lease was made, to have sustained the weight under which they broke, and precipitated the plaintiff's intestate into the water, inflicting the injury which caused his death in July, 1866.
At least, we can know nothing to the contrary as a fact.
There is no such general law of nature as will possess the court and jury of the proper knowledge to pass upon the soundness of the timbers, or their capacity to sustain the weight required, from the facts proven.
The judge erred in his instructions upon this subject.
The judge submitted to the jury the question whether the defendants were in the possession of the pier when the accident occurred.
*148The only evidence to support the submission of this inquiry was that the lease was executed some months after the date, and that the defendants’ agent entered upon the pier and repaired it a few months after it broke down.
. It was also in evidence, and undisputed, that the lessees were in the possession at the date of the lease, and from thence until it fell. Also, that the defendants claimed the expense of these repairs from the lessees, which they com- promised at fifty per cent., being liable, under a covenant, in the lease for repairing.
There is nothing inconsistent in these circumstances, upon which the plaintiffs rely to sustain the proposition, that the defendants were in possession, with the opposite conclusion.
The evidence is not sufficient to authorize the submission of the question.
The jury may have based their verdict upon an erroneous finding as to this fact of possession.
The judgment should be reversed and a new trial ordered, With costs to abide the event.