Ellington v. . Ricks
102 S.E. 498
N.C.
1920
Check Treatment
Per Curiam.

There are several exceptions in the record, but all of them are covered by the exception to the refusal to nonsuit, and on this it is conceded, and properly so, that the plaintiff was an invitee on the premises of the defendant, and as such entitled to hold the defendant to the duty of keeping the premises covered by the invitation in a reasonably safe condition in order that he might not be subjected to injury.

It is also not contended by the defendant that there is no evidencé that the part of the premises, where the plaintiff was when he was injured, was unsafe, but the position insisted upon in the able and learned brief of the defendant and on oral argument is that the plaintiff when injured was on a part of the premises where he was not expected to go.

*690 In other words, we are asked to bold as a matter of law that tbe plaintiff'-by stepping outside of tbe little room in wbieb tbe new tank was being installed, wbieb was 6 by 12 or 14 feet, while waiting for tbe tank to £11 with water and walking 12 or 15 feet to look at tbe old tank, from which Bozeman, tbe superintendent and manager of tbe defendant, bad told him tbe carbide, tbe cause of tbe explosion, bad been removed, departed from tbe terms of bis invitation and must be treated as a trespasser or licensee at tbe time of bis injury, and as such tbe defendant owed him no duty except to refrain from wilful injury.

“Tbe authorities are entirely agreed upon tbe proposition that an owner or occupant of lands or buildings who directly or by implication invites or induces others to go thereon or therein owes to such persons a duty to have bis premises in a reasonably safe condition and to give warning of latent or concealed perils.” 20 R. C. L., 55, and that “Tbe owner or occupant of premises is liable for injuries sustained by persons who have entered lawfully thereon only when tbe injury results from tbe use and occupation of that part of tbe premises which has been designed, adapted, and prepared for tbe accommodation of such persons.” 20 R. C. L., 67.

If an invitee goes “to out-of-way places on tbe premises, wholly disconnected from and in no way pertaining to tbe business in band” and is injured, there is no liability. Glaser v. Rothschild, 221 Mo., 180, but a slight departure by him “in tbe ordinary aberrations or casualties of travel” do not change tbe rule or ground of liability, and tbe protection of tbe law is extended to him “while lawfully upon that portion of tbe premises reasonably embraced within tbe object of bis visit.” Monroe v. R. R., 151 N. C., 376; Pauckner v. Waken, 14 L. R. A. (N. S.), 1122.

As said by Winslow, C. J., in Charron v. Fuel Company, 149 Wis., 240 speaking of a similar question as applied to an employee. “Tbe law aims to be reasonable. It recognizes that it has to deal with imperfect human beings and not with faultless and unerring automatons, and that its rules should be shaped accordingly. It must recognize tbe fact that men employed in bard physical labor require and habitually take some brief respite at times during tbe work as opportunity offers; and it must also recognize tbe fact that such a respite, if only of tbe ordinary and usual nature, cannot rightly be called a leaving of tbe employment. In tbe present case tbe plaintiff bad just carried a plank, doubtless of considerable weight, to tbe top of tbe structure. In returning be stopped for a minute or two at a convenient stopping place stepped perhaps eight feet from bis line of travel, and gazed at tbe operations upon and about tbe vessel and tbe harbor below, which were doubtless interesting and attractive. We do not feel that we are obliged to bold or ought to bold as matter of law that this brief and very natural break in tbe plaintiff’s routine labor divested him of bis character as an employee.”

*691 Tbe tank wbicb caused tbe injury was close to tbe course of travel from tbe little bouse where tbe new tank was being installed to tbe dwelling; it was witbin 12 or 15 feet of tbe little bouse and it was on tbat part of tbe premises being used in > tbe installation of tbe new tank, because it was necessary to place it there in tbe proper performance of tbe duty, and this was done under tbe direction of tbe manager and superintendent of tbe defendant.

Tbe plaintiff and Bozeman were in fact using in their work tbe part of tbe premises where tbe plaintiff was standing at tbe time of bis injury. .

We do not think under these conditions it can .be said as a legal conclusion tbat there was such a departure by tbe plaintiff from tbe scope of bis invitation as to bar a recovery.

No error.