183 A. 487 | Vt. | 1936
The declaration alleges that on Sunday, April 15, 1934, the plaintiff, a boy fourteen years of age, along with several companions, was playing upon a certain embankment in the City of Burlington, according to the custom of the children of the neighborhood. The embankment was situated upon the property of the Central Vermont Railway Company, which had, sometime before, given the defendant permission to draw sand therefrom. This work had been going on for several weeks, with the aid of defendant's steam shovel and blasting operations to loosen the sand so that it could be more easily removed by the shovel. After stopping work over the Sunday, the defendant's employees left a box containing dynamite and blasting caps near the scene of their operations. This box was found by the plaintiff who abstracted from it four blasting caps, which he, being ignorant of their nature, took to his home, and afterwards picked at the end of one of them with a pin. The cap exploded and he was injured. It is alleged that the defendant was negligent in leaving the caps upon the embankment while none of its employees were present, knowing that children were accustomed to play there and were unfamiliar with the peril.
There was a demurrer to the declaration, which the trial court sustained, and the cause comes here upon the plaintiff's exceptions.
The plaintiff admits, tacitly at least, that he was a trespasser, and, in the brief filed by his counsel, full recognition is given to the doctrine of Bottum's Admr. v. Hawks,
So, here, it is argued that the defendant was not the owner of the embankment, but merely the licensee of the owner; that the plaintiff's trespass was committed against the Central Vermont Railway Company, and not against the defendant; and that the latter is in the same position as the defendant in the Humphrey case.
But the parallel is by no means complete. Although not the owner of the land, the defendant was in lawful occupation of it. As against the plaintiff, its possession was sufficient to enable it to forbid an entry, or to assert an unlawful invasion. InBottum's Admr. v. Hawks, supra, the defendant did not own the premises upon which he maintained the dangerous open bulkhead through which the plaintiff fell. In Amblo's Admx. v. VermontAssociated Petroleum Corp'n,
Negligence presupposes a breach of duty owed by the party charged to the party injured. Humphrey v. Twin State Gas andElectric Company, supra; Coburn v. Village of Swanton,
Judgment affirmed.