202 Mich. 280 | Mich. | 1918
In the year 1913, plaintiff was a farmer and resided on his farm in Gaines township, Kent county. He was also the owner of another farm in Byron township, which he operated. He traveled from one to the other with his teams and tools over an east and west highway extending through said townships. Early in the spring of 1913 defendants reached this highway in the construction of their interurban railway. The plan of crossing the highway was at right angles and a separation of grades, the highway passing over the railway. Soon after commencing the work the highway became impassable to travelers and as a consequence they veered to the south and went around the construction work. The owner of the land on the south side put an end to this by putting up his fences. Then travelers began to pass around to the north, and later defendants leased ten acres lying immediately north of the intersection to provide a passageway for them around the intersection. On the evening of August 21st plaintiff was returning from the Byron farm to his home with two teams and a lumber wagon. While driving around the construction work and over the leased land in the traveled track the wagon was driven into a deep hole from 18 to 24 inches deep, situate in or near the traveled way. The jolt occasioned thereby threw plaintiff off the wagon and severely injured him.
“It is true, as contended, that the owner of premises is under no legal duty to keep them in good repair for the accommodation of persons who go upon them for their own convenience merely. Where a person has .a license to go upon the grounds or the inclosure of another, he takes the premises as he finds them, and accepts whatever perils he incurs in the use of such license. ' But when the owner or occupant, by enticement, allurement, or inducement, whether express or implied, causes another to come upon* his lands, he then assumes the obligation of providing for the safety and protection of the person so- coming, and for any breach of duty in that respect such owner or occupant becomes liable for any injury which may result to the person so caused to come onto his lands. The enticement, allurement, or inducement, as the case may be, must be the equivalent of an express or implied invitation. Mere acquiescence in the use of one’s lands by another is not sufficient. Such an implied invitation may be inferred from some act or line of conduct or from some designation or dedication.”
But it is argued that defendants were under no legal duty to provide a temporary way, that it was a mere gratuity and, therefore, they are not liable. Conceding, for the sake of argument, that defendants were under no legal obligation to furnish a temporary way, the fact remains that they did furnish one and impliedly invited the public to use it and in so doing they assumed the duty to use ordinary care to keep it reasonably safe for public travel. Stewart v. Railway Co., supra; Retan v. Railway Co., 94 Mich. 146.
The judgment is reversed and a new trial ordered with costs of both courts to plaintiff.