150 Mich. 41 | Mich. | 1907
Both parties introduced testimony at the trial, a verdict for defendant was directed, and a motion for a new trial denied. It is averred in the declaration that across certain unenclosed lands west of and adjoining the power house of defendant there was—
“A permissive right of way, a regularly traveled route, over which the general public in vehicles and on foot, night and day, was accustomed to pass and repass without let or hindrance, and with entire acquiescence of the owners and lessees of said lands and persons in possession thereof, and of which, said permissive right of way and of the custom of the public to travel over and thereon said defendant had full knowledge.” p
That the defendant caused a dangerous ditch or excavation to be dug across the lands “so used as a permissive right of way as aforesaid,” and to be filled with boiling water, raising a duty to place gates or barriers around the ditch or to place lights or signals to warn travelers “who might have occasion to pass over said permissive way ” of the existence of the ditch. Neglect to perform this duty is averred, and that plaintiff, nine years of age,
It was not claimed in the opening statement of counsel for plaintiff, or attempted to be proved, that “a permissive right of way, a regularly traveled route, over which the general public in vehicles and on foot, night and day, was accustomed to pass and repass,” existed at or near the place where the child was injured, or that the child in traveling over the land upon the occasion in question was following or attempting to follow any path or way, permissive or other. On the contrary, at the trial, and here, her asserted right is predicated upon a condition of things described by her counsel in his opening as follows:
“The evidence will show that for about 15 years last past people have been passing and repassing over these lands in every direction at all hours of the day and night without any objection on the part of the owners of the same, nor without any objection on the part of anybody.”
This alleged condition is again stated in the brief—
“The evidence further clearly shows that the defendant had knowledge of the fact — that the neighboring people and the general public, as well as little children of tender years, were accustomed to come upon said premises, and pass and'repass over the same in various directions, and in various manners, according as their convenience might indicate, and that little children — including the plaintiff — were accustomed to come upon said premises to play and see things which seemed novel to them, and that the defendant had reasonable cause to believe that there existed a strong probability that such children would at any time come upon said premises, as well as the neighboring people and general public, and be exposed to danger.”
It was a further theory of counsel for plaintiff that defendant’s use of the premises in question was limited and was confined to various fractional portions of the whole,
“ I take it that there is no question that the defendant in this case has the right to occupy this property. There is sufficient testimony going to show that it has used it for a long number of years for the purposes set forth and described in the declaration; using it for the general purpose of piling wood, dumping ashes and things like that.”
Neither in requests to charge nor in the reasons given
But a description of the premises and of the use made of them by defendant and by the public is equally conclusive of the exclusive character of the occupancy by defendant and of the casual nature of the public use. The premises are not enclosed, lie directly west of and are used with defendant’s power plant, are 300 feet in length north and south and 150 feet in width, abut upon the north, south, and west sides upon streets, upon two of which — the north and west — are sidewalks. They have been used by defendant for 15 years. A wagon road runs north and south through the land just west of the power house, branching as it approaches the south boundary. About 90 feet south of Pine street, and 98 feet west of the west wall of the power house, is a tank about 15 feet high, which had been in position for four or five years, connected with the power house by a pipe laid underground, conducting hot water and waste steam from heaters and the boilers. From the tank an open ditch runs west to and under the sidewalk, serving, it is assumed, as a channel for water which overflows the tank. The reason for constructing the tank was that some of the people of the neighborhood came to that point to get hot water and it was feared that some of them might be injured. Thereafter those who came to get hot water took it from the ditch at or near the sidewalk where the stream is so small that a dipper must be used. For 15 years the ashes from the power house have been distributed over the space west of the power house and west of the wagon road referred to, and they extended nearly to the sidewalk on the west. In the winter, cordwood is piled in the space lying south of the south line of the power house,
Two or three days prior to the day when the plaintiff was injured, for the purpose of repairing a defective pipe, defendant opened the trench or ditch in which it had been laid, from a point three feet or thereabouts easterly of the tank to the west line of the power house. The ditch was about two feet wide, about two feet deep at the power house and three feet deep at the tank, and hot water flowed through it. Barriers were placed where the ditch crossed the road. No other barriers were erected. On the evening of October 28, 1904, plaintiff, in company with other girls, walked to the north on the sidewalk on the west side of the premises to or near railroad tracks, upon which a steam shovel used in excavating and loading ore was standing. It was a dark night. Some of the girls thought, or suspected, there was a man in the steam shovel, and, becoming frightened, they ran for their respective homes. Plaintiff lived on Oak street about south of the east side of the power house. She left the side
It may happen, an instance is described in Beck v. Carter, 68 N. Y. 283, that an unoccupied lot in a public place is so exclusively, continuously, and generally used by the public, with the acquiescence of the owner, that as to him it is a highway and the rights of individual members of the public to be upon the premises is similar to their right to occupy the highway. This is not such a case. Defendant’s occupancy and use of the land was visible and constant, and for purposes of its business was exclusive. No path or way is shown to have existed at or over the land where the ditch was opened. The experience of plaintiff was that she had been upon and across these premises and had not been driven off or denied the privilege. It does not appear that she ever traveled over them in a path or way or in a direction used by any one else, or that she twice pursued the same way herself. The use made by plaintiff of the premises was the use made by others of the public who passed over them, outside of the open, traveled ways. It cannot he said that plaintiff or the public had any right upon the premises. Ryan v. Towar, 128 Mich. 463, 465 (55 L. R. A. 310); Hounsell v. Smyth, 7 C. B. (N. S.) 731; Clark v. Railroad Co., 113 Mich. 24. But assuming, as the trial judge did, that she belonged to the class known to the law as naked licensees, “about the least favored in the law of men who are not actual wrong-doers,” Pollock on Torts, pp. 424, 425, her position, assuming further that she exercised proper care, is not improved, unless it. should be said that defendant’s conduct in opening the ditch and leaving it unguarded at the point where plaintiff fell into it was such a change in the condition of the premises, such creating of a new danger by its active conduct, as indicated a reckless and wanton disregard of the safety of plaintiff and others. Here again we cometo the proposition that if in the conduct of its business it became nec
“If with knowledge that such person will [or may] avail himself of the license, the owner actively change the situation by digging a pitfall, or opening a ditch, or obstructing dangerously the premises which he has reason to believe will be traversed by his licensee, sound morals would seem to demand that he should give reasonable warning of the danger,”
—is limited, and was substantially limited in application in Beck v. Carter, supra, to cases where the use is “definite, long, open and continuous.” It does not appear that in opening and keeping open the ditch defondant was acting except from necessity. It was concealed only by the darkness of the night. The case is ruled, in principle, by Reardon v. Thompson, 149 Mass. 267, and against the contentions of appellant.
The judgment is affirmed.