Chapter XIV: Section VI: Liability of Occupiers of Premises (2)

And where one goes upon the land of another, not by mere license, but by invitation from the owner, the latter owes him a larger duty. “The general rule or principle applicable to this class of cases is that an owner or occupant is bound to keep his premises in a safe and suitable condition for those who come upon and pass over them, using due care, if he has held out any inducement, invitation, or allurement, either express or implied, by which they have been led to enter thereon.” _Per_ Bigelow, C. J., in Sweeny _v._ Old Colony & Newport R. Co., 10 Allen, 368, reviewing many cases. And see Indermaur _v._ Dames, L. R. 1 C. P. 274; L. R. 2 C. P. 311.

Now, what an express invitation would be to an adult, the temptation of an attractive plaything is to a child of tender years. If the defendant had left this turn-table unfastened for the purpose of attracting young children to play upon it, knowing the danger into which it was thus alluring them, it certainly would be no defence to an action by the plaintiff, who had been attracted upon the turn-table and injured, to say that the plaintiff was a trespasser, and that his childish instincts were no excuse for his trespass. In Townsend _v._ Wathen, 9 East, 277, it was held to be unlawful for a man to tempt even his neighbor’s dogs into danger, by setting traps on his own land, baited with strong-scented meat, by which the dogs were allured to come upon his land and into his traps. In that case, Lord Ellenborough asks, “What is the difference between drawing the animal into the trap by his natural instinct, which he cannot resist, and putting him there by manual force?” And Grose, J. says “A man must not set traps of this dangerous description in a situation to invite his neighbor’s dogs, and, as it were, to compel them by their instinct to come into the traps.”

It is true that the defendant did not leave the turn-table unfastened for the purpose of injuring young children; and if the defendant had no reason to believe that the unfastened turn-table was likely to attract and to injure young children, then the defendant would not be bound to use care to protect from injury the children that it had no good reason to suppose were in any danger. But the complaint states that the defendant knew that the turn-table, when left unfastened, was easily revolved; that, when left unfastened, it was very attractive, and when put in motion by them, dangerous, to young children; and knew also that many children were in the habit of going upon it to play. The defendant therefore knew that by leaving this turn-table unfastened and unguarded, it was not merely inviting young children to come upon the turn-table, but was holding out an allurement, which, acting upon the natural instincts by which such children are controlled, drew them by those instincts into a hidden danger; and having thus knowingly allured them into a place of danger, without their fault (for it cannot blame them for not resisting the temptation it has set before them), it was bound to use care to protect them from the danger into which they were thus led, and from which they could not be expected to protect themselves.

We agree with the defendant’s counsel that a railroad company is not required to make its land a safe playground for children. It has the same right to maintain and use its turn-table that any landowner has to use his property. It is not an insurer of the lives or limbs of young children who play upon its premises. We merely decide that when it sets before young children a temptation which it has reason to believe will lead them into danger, it must use ordinary care to protect them from harm. What would be proper care in any case must, in general, be a question for the jury, upon all the circumstances of the case.

The position we have taken is fully sustained by the following cases, some of which go much farther in imposing upon the owner of dangerous articles the duty of using care to protect from injury children who may be tempted to play near or meddle with them, than it is necessary to go in this case. Lynch _v._ Nurdin, 1 Q. B. 29; Birge _v._ Gardiner, 19 Conn. 507; Whirley _v._ Whiteman, 1 Head, 610.

It is true that, in the cases cited, the principal question discussed is not whether the defendant owed the plaintiff the duty of care, but whether the defendant was absolved from liability for breach of duty by reason of the fact that the plaintiff was a trespasser, who, by his own act, contributed to the injury; and the distinction is not sharply drawn between the effect of the plaintiff’s trespass, as a bar to his right to require care, and the plaintiff’s contributory negligence, as a bar to his right to recover for the defendant’s failure to exercise such care as it was his duty to use. But as a young child, whom the defendant knowingly tempts to come upon his land, if anything more than a technical trespasser, is led into the commission of the trespass by the defendant himself, and thus occupies a position widely different from that of an ordinary trespasser, the fact that the Courts, in the cases referred to, assumed, instead of proving, that the defendant owed to a young child, under such circumstances, a duty he would not owe to an ordinary trespasser, for whose trespass he was not in any way responsible, does not weaken the authority of those cases. And in Railroad Co. _v._ Stout, 17 Wall. 657 (a case in all respects similar to the present), the distinction insisted on by counsel is taken by Mr. Justice Hunt, and the circumstance that the plaintiff was in some sense a trespasser is held not to exempt the defendant from the duty of care. In the charge of the learned circuit judge at the trial of the last named case (reported under the title of Stout _v._ Sioux City & Pacific R. Co., 2 Dillon, 294), the elements which must concur to render the defendant liable, in a case like the present, are clearly stated.

In Hughes _v._ Macfie, 2 Hurlst. & Coltm. 744, and Mangan _v._ Atterton, L. R. 1 Exch. 239, cited by defendant’s counsel, there was nothing to show that the defendants knew or had reason to apprehend that the cellar lid in the one case, or the crushing machine in the other, would be likely to attract young children into danger. It must be conceded that Hughes _v._ Macfie is not easily to be reconciled with Birge _v._ Gardiner, and that Mangan _v._ Atterton seems to conflict with Lynch _v._ Nurdin; but whether correctly decided or otherwise, they do not necessarily conflict with our decision in this case.

Much reliance is placed by defendant on Phila. & Reading R. Co. _v._ Hummell, 44 Penn. St. 375 and Gillis _v._ Penn. R. Co., 59 Penn. St. 129. In the first of these cases, the plaintiff, a young child, was injured by coming upon the track while the cars were in motion. The only negligence charged upon the defendant was the omission to give any signal at or after the starting of the train. If the plaintiff had been crossing the track, through one of the openings which the company had suffered the people in the neighborhood to make in the train while standing on the track, and the cars had then been run together upon him, without any warning, the case would more nearly resemble the present; but the facts, as they appear, show that the company used abundant care, and that it had no reason to suppose that the plaintiff was exposed to danger; and the decision is put upon the latter ground, although Strong, J., delivering the opinion of the Court, uses language which lends some support to the defendant’s contention in this case. Gillis _v._ Penn. R. Co. was properly decided, on the ground that the company did nothing to invite the plaintiff upon the platform, by the fall of which he was injured, and that the platform was strong enough to bear the weight of any crowd of people which the company might reasonably expect would come upon it. Neither of these cases is an authority against, while a later case in the same court, Kay _v._ Penn. R. Co., 65 Penn. St. 269, tends strongly to support, the plaintiff’s right of action in this case; and the recent case of Pittsburg, A. & M. Passenger R. Co. _v._ Caldwell, 74 Penn. St. 421, points in the same direction.

It was not urged upon the argument that the plaintiff was guilty of contributory negligence, and we have assumed that the plaintiff exercised, as he was bound to do, such reasonable care as a child of his age and understanding was capable of using, and that there was no negligence on the part of his parents or guardians, contributing to his injury.

_Judgment reversed._[137]

FROST _v._ EASTERN RAILROAD
SUPREME COURT, NEW HAMPSHIRE, DECEMBER, 1886.
_Reported in 64 New Hampshire Reports, 220._

Case, for personal injuries from the alleged negligence of the defendants in not properly guarding and securing a turn-table. The plaintiff, who sues by his father and next friend, was seven years old when the accident occurred, June 23, 1877, and the action was commenced June 7, 1884. Plea, the general issue and statute of limitations. A motion for a nonsuit was denied, and the defendants excepted. Verdict for the plaintiff. The facts are sufficiently stated in the opinion.

CLARK, J. The action is not barred by the statute of limitations. “Any infant, married woman, or insane person may bring any personal actions within two years after such disability is removed.” G. L., c. 221, s. 7.

As a general rule, in cases where a disability exists when the right of action accrues, the statute does not run during the continuance of the disability, and it has not commenced to run against the plaintiff. Pierce _v._ Dustin, 24 N. H. 417; Little _v._ Downing, 37 N. H. 356. It is said that the plaintiff’s next friend was under no disability, that he could have brought the action at any time within six years after the right of action accrued, and therefore the statute should apply to this case. It is an answer to this suggestion that it is the infant’s action, and the failure of the next friend to bring suit within six years is no bar to the plaintiff’s right of action. Wood Lim. of Act. 476.

The motion for a nonsuit raises the question whether there was evidence upon which the jury could properly find a verdict for the plaintiff. Paine _v._ Railway, 58 N. H. 611. The ground of the action is, that the defendants were guilty of negligence in maintaining a turn-table insecurely guarded, which, being wrongfully set in motion by older boys, caused an injury to the plaintiff, who was at that time seven years old, and was attracted to the turn-table by the noise of the older and larger boys turning and playing upon it. The turn-table was situated on the defendants’ land, about sixty feet from the public street, in a cut with high, steep embankments on each side; and the land on each side was private property and fenced. It was fastened by a toggle, which prevented its being set in motion unless the toggle was drawn by a lever, to which was attached a switch padlock, which being locked prevented the lever from being used unless the staple was drawn. At the time of the accident the turn-table was fastened by the toggle, but it was a controverted point whether the padlock was then locked. When secured by the toggle and not locked with the padlock, the turn-table could not be set in motion by boys of the age and strength of the plaintiff.

Upon these facts we think the action cannot be maintained. The alleged negligence complained of relates to the construction and condition of the turn-table, and it is not claimed that the defendants were guilty of any active misconduct towards the plaintiff. The right of a landowner in the use of his own land is not limited or qualified like the enjoyment of a right or privilege in which others have an interest, as the use of a street for highway purposes under the general law, or for other purposes under special license (Moynihan _v._ Whidden, 143 Mass. 287), where care must be taken not to infringe upon the lawful rights of others. At the time of his injury the plaintiff was using the defendants’ premises as a playground without right. The turn-table was required in operating the defendants’ railroad. It was located on its own land so far removed from the highway as not to interfere with the convenience and safety of the public travel, and it was not a trap set for the purpose of injuring trespassers. Aldrich _v._ Wright, 53 N. H. 404. Under these circumstances, the defendants owed no duty to the plaintiff; and there can be no negligence or breach of duty where there is no act or service which the party is bound to perform or fulfil. A landowner is not required to take active measures to insure the safety of intruders, nor is he liable for an injury resulting from the lawful use of his premises to one entering upon them without right. A trespasser ordinarily assumes all risk of danger from the condition of the premises; and to recover for an injury happening to him he must show that it was wantonly inflicted, or that the owner or occupant, being present and acting, might have prevented the injury by the exercise of reasonable care after discovering the danger. Clark _v._ Manchester, 62 N. H. 577; State _v._ Railroad, 52 N. H. 528; Sweeny _v._ Railroad, 10 Allen, 368; Morrissey _v._ Railroad, 126 Mass. 377; Severy _v._ Nickerson, 120 Mass. 306; Morgan _v._ Hallowell, 57 Me. 375; Pierce _v._ Whitcomb, 48 Vt. 127; McAlpin _v._ Powell, 70 N. Y. 126; St. L., V. & T. H. R. R. Co. _v._ Bell, 81 Ill. 76; Gavin _v._ Chicago, 97 Ill. 66; Wood _v._ School District, 44 Iowa, 27; Gramlich _v._ Wurst, 86 Pa. St. 74; Cauley _v._ P. C., & St. Louis Railway Co., 95 Pa. St. 398; Gillespie _v._ McGowan, 100 Pa. St. 144; Mangan _v._ Atterton, L. R. 1 Ex. 239. The maxim that a man must use his property so as not to incommode his neighbor, only applies to neighbors who do not interfere with it or enter upon it. Knight _v._ Abert, 6 Pa. St. 472. To hold the owner liable for consequential damages happening to trespassers from the lawful and beneficial use of his own land would be an unreasonable restriction of his enjoyment of it.

We are not prepared to adopt the doctrine of Railroad Co. _v._ Stout, 17 Wall. 657, and cases following it, that the owner of machinery or other property attractive to children is liable for injuries happening to children wrongfully interfering with it on his own premises. The owner is not an insurer of the safety of infant trespassers. One having in his possession agricultural or mechanical tools is not responsible for injuries caused to trespassers by careless handling, nor is the owner of a fruit-tree bound to cut it down or enclose it, or to exercise care in securing the staple and lock with which his ladder is fastened, for the protection of trespassing boys who may be attracted by the fruit. Neither is the owner or occupant of premises upon which there is a natural or artificial pond, or a blueberry pasture, legally required to exercise care in securing his gates and bars to guard against accidents to straying and trespassing children. The owner is under no duty to a mere trespasser to keep his premises safe; and the fact that the trespasser is an infant cannot have the effect to raise a duty where none otherwise exists. “The supposed duty has regard to the public at large, and cannot well exist as to one portion of the public and not to another, under the same circumstances. In this respect children, women, and men are upon the same footing. In cases where certain duties exist, infants may require greater care than adults, or a different kind of care; but precautionary measures having for their object the protection of the public must as a rule have reference to all classes alike.” Nolan _v._ N. Y. N. H. & H. Railroad Co., 53 Conn. 461.

There being no evidence to charge the defendants with negligence, the motion for a nonsuit should have been granted.

_Exceptions sustained._[138]

COOKE _v._ MIDLAND GREAT WESTERN RAILWAY OF IRELAND
IN THE HOUSE OF LORDS, MARCH 1, 1909.
_Reported in [1909] Appeal Cases, 229._

The appellant by his father brought an action against the respondents for an injury sustained on the company’s land in Meath under the circumstances stated in the head-note, the details of which are fully discussed in the judgments in this House. At the trial before Lord O’Brien, C. J., the jury found a verdict for the plaintiff for £550, and judgment was entered accordingly. The jury found that the fence was in a defective condition through the negligence of the defendants; that the plaintiff was allured through the hedge and up to the turn-table by the negligence of the defendants; and that it was by reason of the defendants’ negligence and as the effective cause of it that the misfortune occurred. That judgment was affirmed by the King’s Bench Division in Ireland (Palles, C. B., and Johnson, J., Kenny, J., dissenting) and was afterwards set aside by the Court of Appeal in Ireland (Sir S. Walker, L. C., FitzGibbon and Holmes, L.JJ.). Hence this appeal by the plaintiff.[139]

LORD MACNAGHTEN. My Lords, the only question before your Lordships is this: Was there evidence of negligence on the part of the company fit to be submitted to the jury? If there was, the verdict must stand, although your Lordships might have come to a different conclusion on the same materials.

I cannot help thinking that the issue has been somewhat obscured by the extravagant importance attached to the gap in the hedge, both in the arguments of counsel and in the judgments of some of the learned judges who have had the case under consideration. That there was a gap there, that it was a good broad gap some three feet wide, is, I think, proved beyond question. But of all the circumstances attending the case it seems to me that this gap taken by itself is the least important. I have some difficulty in believing that a gap in a roadside fence is a strange and unusual spectacle in any part of Ireland. But however that may be, I quite agree that the insufficiency of the fence, though the company were bound by Act of Parliament to maintain it, cannot be regarded as the effective cause of the accident.

The question for the consideration of the jury may, I think, be stated thus: Would not a private individual of common sense and ordinary intelligence, placed in the position in which the company were placed, and possessing the knowledge which must be attributed to them, have seen that there was a likelihood of some injury happening to children resorting to the place and playing with the turn-table, and would he not have thought it his plain duty either to put a stop to the practice altogether, or at least to take ordinary precautions to prevent such an accident as that which occurred?

This, I think, was substantially the question which the Lord Chief Justice presented to the jury. It seems to me to be in accordance with the view of the Court of Queen’s Bench in Lynch _v._ Nurdin, 1 Q. B. 29, and the opinion expressed by Romer and Stirling, L.JJ., in McDowall _v._ Great Western Ry. Co., [1903] 2 K. B. 331.

The Lord Chancellor of Ireland puts Lynch _v._ Nurdin, 1 Q. B. 29, aside. He holds that it bears no analogy to the present case, because the thing that did the mischief there was a “cart in the public street—a nuisance.” But no question of nuisance was considered in Lynch _v._ Nurdin. That point was not suggested. The ground of the decision is a very simple proposition. “If,” says Lord Denman, “I am guilty of negligence in leaving anything dangerous in a place where I know it to be extremely probable that some other person will unjustifiably set it in motion to the injury of a third, and if that injury should be so brought about, I presume that the sufferer might have redress by action against both or either of the two, but unquestionably against the first.” If that proposition be sound, surely the character of the place, though, of course, an element proper to be considered, is not a matter of vital importance. It cannot make very much difference whether the place is dedicated to the use of the public or left open by a careless owner to the invasion of children who make it their playground.

I think the jury were entitled and bound to take into consideration all the circumstances of the case—the mode in which the turn-table was constructed; its close proximity to the wall by which the plaintiff’s leg was crushed; the way in which it was left, unfenced, unlocked, and unfastened; the history of this bit of ground and its position, shut off as it was by an embankment from the view of the company’s servants at the station, and lying half derelict. After the construction of the embankment it served no purpose in connection with the company’s undertaking, except that at one time a corner of it was used as a receptacle for some timber belonging to the company, and afterwards as a site for this turn-table. In other respects, and apart from these uses, it seems to have been devoted or abandoned to the sustenance of the railway inspector’s goat and the diversion of the youth of Navan. It is proved that in spite of a notice board idly forbidding trespass it was a place of habitual resort for children, and that children were frequently playing with the timber, and afterwards with the turn-table. At the date of the trial, twelve months after the accident, a beaten path leading from the gap bore witness both to the numbers that flocked to the spot and to the special attraction that drew children to it. It is remarkable that not a single word of cross-examination as to either of these points was addressed to the principal witnesses for the plaintiff, Tully, the herd, and Gertrude Cooke, the plaintiff’s sister; nor was any explanation or evidence offered on the part of the company. Now the company knew, or must be deemed to have known, all the circumstances of the case and what was going on. Yet no precaution was taken to prevent an accident of a sort that might well have been foreseen and very easily prevented. They did not close up the gap until after the accident. Then it was the first thing thought of. But it was too late. They did not summon any of the children who played there, or bring them before the magistrates, as a warning to trespassers and a proof that they were really in earnest in desiring to stop an objectionable practice which had gone on so long and so openly. They did not have their turn-table locked automatically in the way in which Mr. Barnes, C. E., whose evidence is uncontradicted, says it is usual to lock such machines. The table, it seems, was not even fastened. There was a bolt; but if Cooke, the father of the plaintiff, is to be believed, the bolt was rusty and unworkable. The jury were not bound to believe Fowler, a ganger in the service of the company, in preference to Cooke. Fowler, after some incautious admissions which the jury probably accepted as true, turned round and showed himself, as the Chief Justice says, to be hostile to the plaintiff. He prevaricated to such an extent that the jury were justified in disregarding everything said by him with the view of shielding his employers or saving himself from blame, whether it came out of his own head, as the nonsense he talked about rat-holes, or was suggested by counsel, as the expression of “hunting” children off the ground.

* * * * *

It seems to me that the Chief Justice would have been wrong if he had withdrawn the case from the jury. I think the jury were entitled, in view of all the circumstances, on the evidence before them, uncontradicted as it was, to find that the company were guilty of negligence. I am therefore of opinion that the finding of the jury should be upheld and the judgment under appeal reversed, with pauper costs here and costs below; and I move your Lordships accordingly.

I will only add that I do not think that this verdict will be followed by the disastrous consequences to railway companies and landowners which the Lord Chancellor of Ireland seems to apprehend. Persons may not think it worth their while to take ordinary care of their own property, and may not be compellable to do so; but it does not seem unreasonable to hold that, if they allow their property to be open to all comers, infants as well as children of maturer age, and place upon it a machine attractive to children and dangerous as a plaything, they may be responsible in damages to those who resort to it with their tacit permission, and who are unable, in consequence of their tender age, to take care of themselves.[140]

BOLCH _v._ SMITH
IN THE EXCHEQUER, JANUARY 30, 1862.
_Reported in 7 Hurlstone & Norman, 736._

Action to recover for damage occurring as hereinafter stated. Pleas: first, not guilty; second, various special pleas. Issues thereon.[141]

At the trial, before CHANNELL, B., at the last Hampshire Summer Assizes, the following facts appeared: The plaintiff was a millwright employed in the Government dock-yard at Portsmouth. The defendant was a contractor, and had been engaged for some time in enlarging one of the docks. The men employed in the dock-yard were not allowed to leave it during the day, and water-closets had been built for their use. For the purpose of going to these water-closets, they had permission to use certain paths which crossed the dock-yard. The defendant had been permitted to erect a mortar-mill for the purpose of his work, and he built an engine-house on one side of one of these paths and the mortar-mill on the other side of the path. A revolving shaft which connected the engine with the mill was placed across the path about six inches above the level of the ground. This shaft was partly covered with a few planks not joined together, and forming an incline upwards from the ground, so that a barrow could be wheeled over it. The shaft had been on that spot covered or uncovered for five years. The plaintiff had gone along this path to one of the water-closets, and whilst returning he accidentally stumbled when near the shaft, which was in rapid motion, and on reaching out his hand to save himself his left arm was caught by the shaft, and so much lacerated that it was necessary to amputate it. There were two other paths by which the plaintiff might have reached the water-closet; but the one he used was the shortest and most convenient.

In the course of the defendant’s case it appeared that the shaft had been fenced to some extent but not sufficiently.

At the close of the defendant’s case, the learned judge proposed to leave it to the jury to assess the damages, supposing the plaintiff had a right of action, and then to nonsuit the plaintiff, reserving leave for him to move to set aside the nonsuit, and enter the verdict for the amount assessed by the jury. The plaintiff’s counsel declined to accede to this course; whereupon the learned judge left it to the jury to say: first, whether the plaintiff was lawfully using the way in question on the day of the accident; secondly, whether the defendant was guilty of negligence in leaving the shaft in the state it was on that day. The jury answered both questions in the affirmative, and they added that they found “that the shaft was not sufficiently fenced;” and they assessed the damages at 230_l._ A verdict having been entered for the plaintiff for that amount.

_Coleridge_, in last Michaelmas Term, obtained a rule nisi for a new trial, on the ground that the learned judge misdirected the jury in not telling them that there was no obligation on the part of the defendant to fence the shaft; and also that the verdict was against the evidence.

CHANNELL, B. I am of opinion that the rule must be absolute for a new trial. [Remainder of opinion omitted.]

MARTIN, B. I am of the same opinion. The real objection to this action is that the plaintiff has failed to establish that there was any obligation or duty on the part of the defendant to have this path in any other condition than it was at the time of the accident. That should have been established in some way. If the plaintiff could have shown any such obligation on the part of the defendant he would have made out a case, but that was a condition precedent, and the plaintiff has wholly failed to do so. The defendant had a right to erect the machinery, to erect it in the place he did, and to work it in the manner he was doing.

Then what is the true condition of the plaintiff? It is said that he had a right to go along the path across which the machinery was erected, for he was a workman employed in the dock-yard, and had liberty to use the water-closet. But that is a fallacious argument. It is true the plaintiff had permission to use the path. Permission involves leave and license, but it gives no _right_. If I avail myself of permission to cross a man’s land, I do so by virtue of a license, not of a right. It is an abuse of language to call it a right: it is an excuse or license, so that the party cannot be treated as a trespasser. Inasmuch as there was another way by which the plaintiff might have gone, but voluntarily chose the one which was out of order, I think he has no right of action against the defendant, and that he ought to have been nonsuited at the trial.

WILDE, B. I am of the same opinion. It is of importance in all these cases that the facts upon which the decisions are based should be made plain. The plaintiff was one of a number of persons who obtained leave and license from the dock-yard authorities to cross the yard from one place to another. The defendant had permission from the same authorities to put up certain machinery in the yard. The plaintiff while walking along the usual track fell down, not by reason of any obstruction, but in consequence of stumbling, and in trying to save himself, his arm came in contact with a revolving shaft and was lacerated.

I will decide the case as if it were a question between the plaintiff and the owners of the yard, because if they are not responsible for putting up the shaft, a fortiori the defendant is not. Then, was there any obligation on the owners of the yard not to put up machinery that might be dangerous to persons crossing it? None of the facts tend to show that any such obligation existed. If what was put up was an obstruction to any person who used that way, the only consequence would be that he would have to go another way. That being so, it appears to me that this action cannot lie, because I agree that it is founded upon a duty, and none exists.

That disposes of the case; but I will add that I do not mean to say that if the defendant had made a hole in the yard, and had covered it in a way that was insufficient, but which appeared to be sufficient, he would not have been liable. But here there was nothing of that character. The danger was open and visible. There was nothing which could be called a “trap.”

POLLOCK, C. B., concurred.

_Rule absolute for a new trial._[142]

GAUTRET _v._ EGERTON
IN THE COMMON PLEAS, FEBRUARY 11, 1867.
_Reported in Law Reports, 2 Common Pleas, 371._

The declaration in the first of these actions stated that the defendants were possessed of a close of land, and of a certain canal and cuttings intersecting the same, and of certain bridges across the said canal and cuttings, communicating with and leading to certain docks of the defendants, which said land and bridges had been and were from time to time used with the consent and permission of the defendants by persons proceeding towards and coming from the said docks; that the defendants, well knowing the premises, wrongfully, negligently, and improperly kept and maintained the said land, canal, cuttings, and bridges, and suffered them to continue and be in so improper a state and condition as to render them dangerous and unsafe for persons lawfully passing along and over the said land and bridges towards the said docks, and using the same as aforesaid; and that Leon Gautret, whilst he was lawfully in and passing and walking along the said close and over the said bridge, and using the same in the manner and for the purpose aforesaid, by and through the said wrongful, negligent, and improper conduct of the defendants as aforesaid, fell into one of the said cuttings of the defendants, intersecting the said close as aforesaid, and thereby lost his life within twelve calendar months next before the suit: and the plaintiff, as administratrix, for the benefit of herself, the widow of the said Leon Gautret, and A. Gautret, &c., according to the statute in such case made and provided, claimed 2,500_l._

The defendants demurred to the declaration, on the ground that “it does not appear that there was any legal duty or obligation on the part of the defendants to take means for preventing the said land, &c., being dangerous and unsafe.” Joinder.

_Crompton_ (_Mellish, Q. C._, with him), in support of the demurrer.—To maintain this action, the declarations ought to show a _duty_ in the defendants to keep the canal, cuttings, and bridges in a safe condition, and also that some invitation had been held out to the deceased to come there, and that the thing complained of constituted a sort of trap. Seymour _v._ Maddox, 16 Q. B. 326 (E. C. L. R. vol. 71), 19 L. J. Q. B. 525; Corby _v._ Hill, 4 C. B. N. S. 556 (E. C. L. R. vol. 93), 27 L. J. C. P. 318. The declaration is entirely wanting in all these particulars. It is not enough to show that the defendants were aware that the place in question was in an unsafe condition, and that the public were in the habit of passing along it. Hounsell _v._ Smyth, 7 C. B. N. S. 731, 29 L. J. C. P. 203.

[WILLES, J. The declaration does not even state that the deceased persons were unacquainted with the state of the place.]

_Herschell_, for the plaintiff Gautret.—The question raised upon this declaration is, whether there is any duty on the part of the defendants toward persons using their land as the deceased here did. That may be negligence in the case of a licensee, which would not be negligence as against a mere trespasser: and, if there can be any case in which the law would imply a duty, it is sufficiently alleged here.

[WILLES, J. It may be the duty of the defendants to abstain from doing any act which may be dangerous to persons coming upon the land by their invitation or permission, as in Indermaur _v._ Dames, Law Rep. 1 C. P. 274.[143] So, if I employ one to carry an article which is of a peculiarly dangerous nature, without cautioning him, I may be responsible for any injury he sustains through the absence of such caution. That was the case of Farrant _v._ Barnes, 11 C. B. N. S. 553, 31 L. J. C. P. 137. But, what duty does the law impose upon these defendants to keep their bridges in repair? If I dedicate a way to the public which is full of ruts and holes, the public must take it as it is. If I dig a pit in it, I may be liable for the consequences: but, if I do nothing, I am not.]

It was not necessary to specify the nature of the negligence which is charged: it was enough to allege generally a duty and a breach of it. Knowing the bridge to be unsafe, it was the duty of the defendants not to permit the public to use it. In Bolch _v._ Smith, 7 H. & N. 736, 31 L. J. Ex. 201, the defect in the fencing of the shaft was apparent: but the judgments of Channell and Wilde, BB., seem to concede that, if there had been a concealed defect, the action would have been maintainable. That shows that there is some duty in such a case as this.

_Potter_, for the plaintiff Jones, submitted that the implied request on the part of the defendants to persons having occasion to go to the docks to pass by the way in question, raised a duty in them to keep it in a safe condition.

WILLES, J. I am of opinion that our judgment must be for the defendants in each of these cases. The argument urged on behalf of the plaintiffs, when analyzed, amounts to this, that we ought to construe the general words of the declaration as describing whatever sort of negligence the plaintiffs can prove at the trial. The authorities, however, and reason and good sense, are the other way. The plaintiff must, in his declaration, give the defendant notice of what his complaint is. He must recover _secundum allegata et probata_. What is it that a declaration of this sort should state in order to fulfil those conditions? It ought to state the facts upon which the supposed duty is founded, and the duty to the plaintiff with the breach of which the defendant is charged. It is not enough to show that the defendant has been guilty of negligence, without showing in what respect he was negligent, and how he became bound to use care to prevent injury to others. All that these declarations allege is, that the defendants were possessed of land, and of a canal and cuttings intersecting the same, and of certain bridges across the canal and cuttings communicating with and leading to certain docks of theirs; that they allowed persons going to and from the docks, whether upon the business or for the profit of the defendants or not, to pass over the land; and that the deceased persons, in pursuance of and using that permission, fell into one of the cuttings, and so met their deaths. The consequences of these accidents are sought to be visited upon these defendants, because they have allowed persons to go over their land, not alleging it to have been upon the business or for the benefit of the defendants, or as the servants or agents of the defendants; nor alleging that the defendants have been guilty of any wrongful act, such as digging a trench on the land, or misrepresenting its condition, or anything equivalent to laying a trap for the unwary passengers; but simply because they permitted these persons to use a way with the condition of which, for anything that appears, those who suffered the injury were perfectly well acquainted. That is the whole sum and substance of these declarations. If the docks to which the way in question led were public docks, the way would be a public way, and the township or parish would be bound to repair it, and no such liability as this could be cast upon the defendants merely by reason of the soil of the way being theirs. That is so not only in reason but also upon authority. It was so held in Robbins _v._ Jones, 15 C. B. N. S. 221, 33 L. J. C. P. 1, where a way having been for a number of years dedicated to the public, we held that the owner of the adjoining house was not responsible for death resulting to a person from the giving way of the pavement, partly in consequence of its being over-weighted by a number of persons crowding upon it, and partly from its having been weakened by user. Assuming that these were private docks, the private property of the defendants, and that they permitted persons going to or coming from the docks, whether for their own benefit or that of the defendants, to use the way, the dedication of a permission to use the way must be taken to be in the character of a gift. The principle of law as to gifts is, that the giver is not responsible for damage resulting from the insecurity of the thing, unless he knew its evil character at the time, and omitted to caution the donee. There must be something like fraud on the part of the giver before he can be made answerable. It is quite consistent with the declarations in these cases that this land was in the same state at the time of the accident that it was in at the time the permission to use it was originally given. To create a cause of action, something like fraud must be shown. No action will lie against a spiteful man who, seeing another running into a position of danger, merely omits to warn him. To bring the case within the category of actionable negligence, some wrongful act must be shown, or a breach of some positive duty: otherwise, a man who allows strangers to roam over his property would be held to be answerable for not protecting them against any danger which they might encounter whilst using the license. Every man is bound not wilfully to deceive others, or do any act which may place them in danger. It may be, as in Corby _v._ Hill, 4 C. B. N. S. 556, 27 L. J. C. P. 318, that he is responsible if he puts an obstruction on the way which is likely to cause injury to those who by his permission use the way; but I cannot conceive that he could incur any responsibility merely by reason of his allowing the way to be out of repair. For these reasons, I think these declarations disclose no cause of action against the defendants, and that the latter are therefore entitled to judgment.

KEATING, J. I am of the same opinion. It is not denied that a declaration of this sort must show a duty and a breach of that duty. But it is said that these declarations are so framed that it would be necessary for the plaintiffs at the trial to prove a duty. I am, however, utterly unable to discover any duty which the defendants have contracted towards the persons whom the plaintiffs represent, or what particular breach of duty is charged. It is said that the condition of the land and bridges was such as to constitute them a kind of trap. I cannot accede to that. The persons who used the way took it with all its imperfections.

_Herschell_ asked and obtained leave to amend within ten days, on payment of costs; otherwise judgment for the defendants.

_Judgment accordingly._

CAMPBELL _v._ BOYD
SUPREME COURT, NORTH CAROLINA, FEBRUARY TERM, 1883.
_Reported in 88 North Carolina Reports, 129._

Civil action tried at Fall Term, 1882, of Beaufort Superior Court, before Gilliam, J.

The defendant appealed.

SMITH, C. J. The defendant owns and operates a mill, that has been built and used for one hundred years, at the head of Pungo creek. A few yards below its site the creek divides, and its waters flow in two separate streams. Along its course on either side run parallel public roads each two miles distant, and from them have been constructed private ways leading up to and meeting at the mill, and affording convenient access from the roads to it. One of these ways was opened by former proprietors, and the other in the year 1867, by the defendant.

In 1875 or 1876, the defendant, with other owners of the intervening land, united in opening a connecting way, between those leading from the public roads, from near points in each, so as to form a direct passway across the two divergent streams from one road to the other, without going up to the mill. Over these waters they also constructed bridges. While this direct route was opened mainly for the convenience of the defendant and his associates, whose lands were traversed, it was also used as well by the public with full knowledge of the defendant, and without objection from any one in passing between the roads.

In February, 1882, the plaintiff, with his horse, while in the use of this connecting way and passing one of the bridges, broke through, and both were precipitated into the creek, and the damage sustained for the redress of which the suit is brought.

The flooring of the bridge was sound, and there was no visible indication of weakness or decay to put a person passing over it on his guard. But the timbers underneath, and hidden by the floor, were in a rotten and unsound condition, and of this the defendant had full knowledge before the disaster.

He was at his mill and saw what occurred, and going up to the place remarked to the plaintiff that when he saw him about to enter the bridge he thought of calling him to stop, but did not do so; that the bridge was unsafe, and he regretted he did not stop the plaintiff from crossing.

These are the material facts found by the judge, under the consent of parties that he should pass upon the evidence and ascertain the facts of the case, and our only inquiry is upon the correctness of his ruling that the defendant is liable in damages to the plaintiff, and from which the defendant appeals.

The only case in our reports bearing upon the point is that of Mulholland _v._ Brownrigg, 2 Hawks, 349. There, the defendant’s millpond overflowed parts of the public road, and hollow bridges had been erected, but by whom, did not appear; nor was it shown that they were built at the expense of the public. This condition of things had existed for twenty years, and the mill had been owned and operated by the defendant for the space of five years. The successive mill proprietors had kept the overflowed bed of the road and the bridges in repair. The plaintiff’s wagon, loaded with goods, passing a bridge, broke through, in consequence of its decayed state, and the goods were injured by the water. The action was for this injury. It was declared by the Court that as a nuisance was created by the flooding of the road, and the defendant had undertaken to remedy it in constructing the bridges, it was his duty, as that of preceding proprietors of the mill, to maintain them in a proper condition of repair, and ensure the safety of those persons who in using the road had to pass over them, and that the damage having resulted from his negligence he was liable to the plaintiff. The proposition is asserted, that inasmuch as the defendant has undertaken to remedy a nuisance of his own creating, by constructing the bridge, he undertakes also and is bound to keep it in sufficient repair, and is answerable for the consequences of his neglect to do so.

The principle of law, in more general terms and with a wider scope, is thus expressed by Hoar, J., in Combs _v._ New Bed. Con. Co., 102 Mass. 584. “There is another class of cases in which it has been held that, if a person allows a dangerous place to exist in premises occupied by him, he will be responsible for injury caused thereby, to any other person entering upon the premises by his invitation and procurement, express or implied, and not notified of the danger, if the person injured is in the use of due care.”

“The principle is well settled,” remarks Appleton, C. J., “that a person injured, without neglect on his part, by a defect or obstruction in a way or passage over which he has been induced to pass for a lawful purpose, by an invitation express or implied, can recover damages for the injury sustained, against the individual so inviting, and being in default for the neglect.” Tobin _v._ P. S. & P. R. R., 59 Maine, 188.

Several illustrations of the principle in its different applications will be found in Wharton on Negligence, § 826, and following.

The facts of the present case bring it within the rule thus enunciated. The way was opened by the defendant and his associates; primarily, though it was for his and their accommodation, yet, permissively, to the general travelling public. It has, in fact, been thus used, and known to the defendant to be thus used, with the acquiescence of himself and the others; and under these circumstances it may fairly be assumed to be an invitation to all who have occasion thus to use it; and hence a voluntary obligation is incurred to keep the bridges in a safe condition, so that no detriment may come to travellers.

Reparation is an inseparable incident of its construction, and, as the obligation to repair rests on no other, the liability for neglect must rest on those who put the bridges there and invited the public to use them.

It is true the way might have been closed, or the public prohibited by proper notices from passing over it, and no one could complain of the exercise of the right to do so; but as long as the way is left open and the bridges remain for the public to use, it is incumbent on those who constructed and maintain them to see that they are safe for all.

The law does not tolerate the presence over and along a way in common use, of structures apparently sound, but in fact ruinous, like man-traps, inviting travellers to needless disaster and injury. The duty of reparation should rest on some one, and it can rest on none others but those who built and used the bridges, and impliedly at least invite the public to use them also. For neglect of this duty they must abide the consequences.

We hold, therefore, that there is no error, and the judgment must be affirmed.

_No error._

_Affirmed._[144]

GALLAGHER _v._ HUMPHREY
IN THE QUEEN’S BENCH, JUNE 14, 1862.
_Reported in 6 Law Times Reports, New Series, 684; S. C. 10 Weekly
Reporter, 664._[145]

Declaration. That the defendant was possessed of a crane fixed upon the New Hibernia Wharf, in a certain passage called Montague Close, Southwark, along which passage the plaintiff and others were permitted to pass, repass, and use the same as a way to certain wharves; that the crane was used by the defendant and his servants to raise and lower goods over the passage; that the plaintiff was, with the permission of the proprietors of the passage, lawfully passing along the said passage to the said wharves; yet the defendant, by himself and his servants, so negligently, &c. managed, directed, and conducted themselves that by and through such neglect, &c., a part of said crane broke, whilst the defendant, by his servants, was using the same, and certain goods fell upon the plaintiff whilst he was passing along, &c. and broke both his legs, &c.

Pleas: 1. Not guilty. 2. That the plaintiff and others were not permitted by the proprietors of the said passage to pass, repass, and use the said passage as a way from a highway to certain wharves, as in the declaration charged. 3. That the plaintiff was not, with the permission of the proprietors of the said passage, lawfully passing along the said passage from the said highway to the said wharves, as in the declaration alleged.

Issue on the said pleas.