White

In November, 1908, we filed an opinion in this case, in which we affirmed the judgment as to defend ant Claus Spreckels, and reversed it as to defendant John D. Spreckels. Upon a petition for a rehearing being filed, we were doubtful of the correctness of our former decision as to John D. Spreckels, and the case has been reargued and additional briefs filed. After a careful consideration of all the authorities cited, we have reached the conclusion that our former opinion proceeded upon a theory which omitted an important element in the case, and was therefore erroneous.

The action was brought to recover damages for personal injuries inflicted as the result of the bursting of a steam radiator in one of the rooms of the Claus Spreckels building in the city and county of San Francisco. After plaintiff had introduced her testimony, and rested, the court granted a nonsuit, and judgment was entered for defendants. This appeal is from the judgment on the judgment-roll and a bill of exceptions.

The facts as shown by the record are as follows: The defendant Claus Spreckels is the owner of the building known as the Claus Spreckels Building. In June, 1898, he leased to defendant John D.…