58 Wash. 6 | Wash. | 1910
The respondent in this case was injured by falling into a canal across a way which he was traveling after night. He recovered a judgment against the appellant, which constructed the canal. Appeal is prosecuted from that judgment.
The complaint upon which the case was tried alleged, among other things, that on the 1st day of January, 1908
It is argued by the appellant that the court erred in. overruling his demurrer to this complaint, and also in overruling his objection to the introduction of any evidence under it. This argument is based upon the fact that the complaint alleges that the way was a “private road and' way of neces
It follows, therefore, that the respondent was not a mere licensee. He was an invitee under the alleged facts. Such invitation would continue so long as the way remained open and the public availed itself of such use, and while continued, the owners and others would be liable the same as though such road were regularly laid out and owned by the
“If a man establishes a private road, path or other way upon his own ground, and impliedly invites the public to use it, he is, according to some holdings, under an obligation to exercise reasonable care and diligence to keep it in a safe condition for the benefit of any one who may have to use it,— that is to say, to keep it free from dangerous obstructions, pitfalls, etc.”
After referring to certain American and English cases, the same author, at § 1015, continues:
“Some of the foregoing decisions are difficult to reconcile with the general rule of law already stated, that bare licensees take the premises of the land-owner as they find them, and come upon them at their own risk, and that he is under no duty to exert himself to keep them safe for his benefit. If the land-owner has been in the habit of allowing the public to make use of a private way while it was safe, and has, by some affirmative act of his own, endangered the passage upon it without giving the public any warning,—as by digging an unguarded pit by the side of it,—it would seem that he ought to be held liable in damages for any injury thereby happening to any member of the public, on the ground that he has been guilty of a plain violation of social duty. But where a man establishes a private way of any sort for his own purposes merely, the mere fact that he is not so unneighborly as to exclude the public from- the use of it, ought not, it should seem, to place him under any particular duty to care for it, to the end of promoting their safety.”
“Nor am I justified in making excavations either on the path which I have permitted other persons to traverse, or so near a public road that travelers, in the ordinary aberration or casualties of travel, may stray or be driven over the line and be injured by falling into the excavation. But beyond this my liability to trespassers, voluntary or involuntary, does not go. I may make what excavations I choose on my own land, without fencing them in, provided they are not on a line over which I permit travelers to pass, or so near a public road that in them a traveler may unwittingly fall.” Wharton, Law of Negligence (2d ed.), § 349.
And in 29 Cyc., page 466, as follows:
“Where the public has been accustomed to use a private way it is negligence for the owner to make an unguarded excavation therein, or otherwise dangerously obstruct it, or to conduct his business in a manner dangerous to those passing, or to fail to keep it in repair.”
See, also, De Tarr v. Ferd. Heim Brewing Co., 62 Kan. 188, 61 Pac. 689; Campbell v. Boyd, 88 N. C. 129, 43 Am. Rep. 740; Phillips v. Library Co., supra; Graves v. Thomas, 95 Ind. 361, 48 Am. Rep. 727.
It is immaterial whether the appellant owned the land over which the way was used. Under the rule above stated, he would be liable if he made a dangerous excavation in the way, where he knew the public were invited and were accustomed to travel. We are of the opinion, therefore, that the complaint states a cause of action.
It is also argued that the court erred in denying appellant’s motion challenging the sufficiency of the evidence to sustain a verdict. This argument is based upon the theory that the evidence fails to show a private way of necessity, or that the public had a legal right to use the road, or that the appellant owed any duty except to avoid wilful and wanton injury. The evidence very clearly shows, that the road in question was a well-defined and much traveled road; that it connected with the main traveled public highway to
It is also argued that the evidence shows that the respondent knew, or should have known, of the ditch, and should have avoided it in the exercise of ordinary care, and therefore may not recover. The evidence was conflicting upon these points, and the finding of the jury is conclusive.
Several objections are made to the instructions. The main points urged against the instructions are disposed of by what we have said above, and we shall not further discuss them. It is sufficient to say, however, that the instructions given by the court were clear and concise and covered the law of the case fully. No error was made either in the instructions given or in those requested and refused.
The judgment is therefore affirmed.