184 N.W. 198 | S.D. | 1921
Appeal from an order of the circuit court of Codington county sustaining defendant’s demurrer to plaintiff’s complaint. The complaint alleges that the defendant was the owner of .certain lots in the business district of the city of Water-town ; that prior to the summer of 1919 he had caused certain excavations about 8 feet deep to be made on said grounds, which excavations disclosed a sand and gravel bottom and side walls of sand and gravel; that defendant thereupon constructed walls of cement on the easterly, southerly, and northerly sides thereof ; that in the summer of 1919 he caused a continuation of said excavation to be made, extending a considerable distance westerly from the original excavation; that the walls of said additional excavation, also 8 feet deep, were of a sandy and gravel nature, likely to fall at an)’- time, as defendant well knew, and were left in that condition, and that no guards of any sort or nature were put up around or. about said excavation to keep children of tender
“In fact this doctrine is not treated as an exception to the law relating to trespassers, but rather as a part of the law ■ applicable to the rights of ‘invitees/ to whom the owner owes the duty of exercising care for their safety.”
Discussing the circumstances under which a child of tender years might or might not be considered an “invitee,” the court said:
“If the defendant did know, or had good reason to believe, under the circumstances of the case, the children of the place would resort to the turntable to play, * * * they would be deemed ‘invitees,’ in which case the owner owes the duty of exercising care for their safety.”
On the other hand, discussing conditions under which the defendant might or might not be deemed guilty of actionable ’negligence in respect to an invitee, the court says:
*365 “The machine in question^ is part of- the defendant’s road which was lawfully constructed where it was. If the company did not know, and had no good reason to suppose, that children would resort to the turntable to play, or did not know or had no reason to suppose that, if they resorted there, they would be likely to get injured thereby, then you cannot find a verdict against them.”
One not an invitee could not recover damages under this rule, because the right of recovery is made to rest primarily upon the question whether the facts and circumstances ■ existing were such that they might be considered by a jury as amounting to an invitation to children of tender years to go upon the premises and ignorantly to put themselves in a place or position in which injury might occur. And the court holds that, in determining whether the particular facts and circumstances were such as to constitute an implied invitation to children, the ignorance, immaturity, and natural curiosity and impulses of childhood m'ay be taken into account by a jury. On the other hand, defining the duty which the owner of premises owes to such possible invitees, the court holds that it would be proper for the jury to determine 'whether the defendant had or had not good reason to suppose that children might resort to the premises, or whether the defendant did Or did not know, or had or had not good reason to suppose, that, if children did resort there they would be likely to be injured. In short, when the defendant had no good reason to suppose that children might resort or be attracted to the premises, or if defendant did not know and had no reason to suppose that, if children did resort there, they would be injured, the charge of negligence would 'be rebutted; and, even though the child was an invitee and was injured, the defendant would not be guilty of actionable negligence.
¡2] Respondent contends that:
“In considering" the question as to whether a duty exists, there is no distinction between the case where an infant is injured and one where the injury is to an adult; though where the duty is imposed the law may exact more vigilance in its discharge as to the former.”
—and asks:
“Why should innocent children have greater rights than*366 innocent adults, in respect to damage resulting from the nature of the premises upon which they enter without permission?”
“Remedy against the landowner for harm happening from the condition of the premises is denied to adults.who are entirely free from intent to violate rights and whose presence upon the land is due to pardonable mistake or to irresistable external force. The test is not whether their motives were innocent or even laudable, or whether their conduct was careful, but whether they entered without the owner’s permission. If so, they cannot claim that the owner was under duty to make things safe for their access, or to give warning of nonapparent danger. * * * The decision turns, not upon the presence of fault in the plaintiff, but upon the absence of fault in the defendant. * * * He fails because the landowner owed him no duty to have the premises in a safe condition for his entry. * * * Why should the moral innocence of a childish intruder raise a duty on the part of the landowner which is not created by the moral innocence of an adult intruder ?”
Carried to its logical conclusion, this reasoning denies a recovery to any trespasser, whether infant or adult, except for an injury caused by the willful or wanton act of the landowner, and it must be conceded that there are decisions, respectable in number, which so hold. They rest wholly upon the leg'al theory that the owner of property has an unqualified right to make any lawful, beneficial use thereof, and owes no duty to any trespasser. The exercise of this right has been held by some courts to be modified or restrained by the principle recognized in the common law, and expressed in the maxim: “Sic utere tuo ut alienum ltedas — One must so use his own rights as not to infringe upon the rights of another.” Section 45, Code 1919. Logically this maxim cannot justify or excuse a trespasser, for the reason that no one possesses the legal right to become a trespasser. Langer v. Goode, 21 N. D. 462, 131 N. W. 258, Ann. Cas. 1913D, 429; Greyvensteyn v. Hattingh et al., 21 Ann. Cas. 643. Many of the cases, however, without any very clear definition of the duty of the landowner, a violation of which would constitute negligence, treat the subject from the standpoint of the infant’s contributory negligence, and, adopting the reasoning in the Stout Case, say:
“It is well settled that the conduct of an infant of tender*367 years is not to be judged by the same rule which governs that of an adult. While it is the general rule in regard to an adult that, to entitle him to recover damages for an injury resulting from the fault or negligence of another, he must himself have been free from fault, such is not the rule in regard to an infant of tender years. The care and caution required of a child is according to his maturity and capacity only, and this is to be determined in each case by the circumstances of that case.” Edwards v. Railway Co., 21 S. D. 504, 110 N. W. 832.
“If there was no 'breach of duty, then there was no wrong, irrespective of the boy’s capacity to know that what he was doing was dangerous.”
“The overwhelming weight of authority both in number of*368 decisions and in soundness of reasoning by which is established the right of little children to recover damages for injuries suffered while trespassing should alone be sufficient to settle this question.”
The order of the trial court is therefore reversed.