122 Ky. 369 | Ky. Ct. App. | 1906
Lead Opinion
Affirming.
The Paducah Laundry Company- has at the rear of its laundry, on Fifth and Jefferson streets, in Padu-cah, a vat, into which the pipes containing .the steam from- the laundry are run to he condensed; .the steam coming from -the boiler in the dry room. The. vat is 6 feet deep, 3 feet, wide, 12 feet long, and is kept full of water. It is four feet from the sidewalk and is situated in ah-open lot. On the' 18th of. January, 1904, George Johnson went to church with his-uncle, and, as they went home, Iris uncle, desiring to .step-aside on a call of nature, they started for the wagon yard,'and for this purpose left the sidewalk near-the vat and started across the lot. It was dark ,and all at once Johnson,slipped into- the vat; which was filled with boiling water. His arms caught on the edge of the vat as he wlent down, but he was badly scalded up, to the; waist. His. injuries were very painful, .and to some .extent permanent. He was laid up for some time. He was compelled to, spend -large sums. in doctor’s bills. The vat was left open much of the time. The manager’s attention had-been called to.it before the accident. The plaintiff also .offered to, show, that another person .had previously fallen into.it. , There was a wooden top covered with zinc -which Was sometimes put over-the vat,-, but it was not .fastened -in any way. The street "was a. much traveled street. There was no danger, from the yat as long as a man stayed on the pavement. The lot was-open and .uninclosed, the top of the vat was level with the. ground, and. there Was nothing to give notice of the danger when it was dark. The defendant, at the conclusion of the plain
It is conceded that Joimson was a trespasser upon appellee’s property, and the question to be determined is whether the laundry is liable for maintaining so dangerous an excavation within four feet of the highway. The rule of law on the subject is thus stated in 2 Shearman & Redfield on Negligence, section 715: “The occupant of the land is'under no., obligation to strangers to place guards around excavations made by him, unless such excavations are so near a public way as to be dangerous, under ordinary circumstances, to persons passing upon the way and using proper care to keep upon the proper path, in which case he must take reasonable precautions to prevent injuries to such persons. Where the excavation is .’at a considerable distance from the public path, there can be no question that the owner or occupant is not liable to a mere stranger falling therein, whether-consciously or unconsciously; but he is liable if he leaves an unguarded excavation so near to- the highway that a person accidentally slipping' from the highway falls into it. Of course, it is culpable negligence to leave a pit or other excavation in such an unguarded state as to cause injury to a person having a right to be upon the land, and using that
In the case before us the plaintiff’s own testimony shows that he deliberately and purposely left the
In the case of Union Stock Yards Company v. Rourke, 10 Ill. App. 474, one who was crossing another’s grounds in the city of Chicago without
In Brinkley Car Works v. Cooper (Ark.) 67 S. W. 752, 57 L. R. A. 724, the defendant had upon its premises a pool of hot water. A child six years old walked into it, and was burned. It was held that there could be no recovery; the company having no notice that children were in the habit of playing there. There is also a note to this case citing a number of other authorities. In a note to Woodward v. Miller, 100 Am. St. Rep. 200, the rule of law on the subject is thus stated by Judge Freeman: “In order to maintain an action for an injury due to negligence,
Any number of authorities may be cited to sustain this conclusion. The tendency of the later cases is rather to limit the exceptions to the rule than to extend it. See Ryan v. Towar (Mich.) 87 N. W. 644, 55 L. R. A. 310, 92 Am. St. Rep. 481; Uthermohlen v. Bogg’s Run Company( W. Va.) 40 S. E. 410, 55 L. R. A. 911, 88 Am. St. Rep. 884, and cases cited. The principle was recognized by this court in Reeves v. French, 45 S. W. 771, 46 S. W. 217, 20 Ky. Law Rep. 220; Schauf’s Adm’r v. City of Paducah, 106 Ky. 228, 20 Ky. Law Rep. 1796; 50 S. W. 42, 90 Am. St. Rep. 220; and Illinois Central Railroad Company v. Waldrop, 72 S. W. 1116, 24 Ky. Law Rep. 2127.
Pences are passing out of use in all of our cities-There are on many vacant lots excavations made for buildings and other purposes — wells-, cisters, vault pits, and the like. The owner of vacant property is not required to fence it, and every one who in the dark goes upon a vacant lot without permission takes the risk of such things. A deep excavation for the foundation of a house or a well or cistern would be practically just as dangerous as the vat in question;
Judgment affirmed.
Dissenting Opinion
— Dissenting.
It seems to me the court in its opinion has applied law not applicable to the facts of this case. The quotations' from Thompson and Shearman & Redfield on Negligence, and their quotations from Chief Baron Pollock, are general principles of law, ordinarily applicable, in ordinary cases, to the owners of property, and théir liability to persons injured thereon. But there is another principal of law, which is just and humane, that will not -permit an owner of real estate, with impunity, to place- a death trap, i. e. a vat of scalding water, thereon, and have it exposed at a place where he knows, or has reason to anticipate, that others will likely suffer death or great bodily harm by reason thereof. The contrary of this proposition would be monstrous. Is it possible that in
In the case of Newark Electric Light & Power Company v. Garden, 78 Fed. 74, 23 C. C. A. 649, 37 L. R. A. 725, the court said, in speaking of the liability of the owner of the property to a technical trespasser: “In such a case as this one, its special facts are for consideration, and upon them, and hot solely with reference to the ownership or occupancy of the locus in quo, the question of duty must be determined. ‘It is true that, where no duty is owed, no liability arises. *' * * But it has been often said duties arise out of circumstances.. Hence, where the owner has reason to apprehend danger, owing to the peculiar situation of his property, and its openness to accident, the rule will vary.’ Hydraulic Works Co. v. Orr, 83 Pa. 332. It makes no difference, where the circumstances give rise to duty, that. the plaintiff was ‘technically a trespasser.’ Schilling v. Abernethy, 112 Pa. 437, 3 Atl. 792, 56 Am. Rep. 320. The true question is: Was he ‘a trespasser there, in a sense that would excuse the defendant for the acts of negligence, * * * whether the owner or occupant of. the premises is liable under any circumstances, and, if so, under what circumstances., for injuries received by a person while on such premises-, and by reason of their dangerous condition? In Union P.
See volume 21, Amer. & Eng. Ency. of Law, page 471: “It seems very clear that the doctrine of duty to the particular person injured^ on which so many cases lay stress, is, in fact, only an application of the general rule of natural and proximate causes hereinafter considered. That is to say, the duty, the breach of which is negligence, is to refrain from doing that which will likely cause injury to others, or to do that which, under the circumstances, reasonable prudence requires. An act or ommission from which injurious consequences could hot, in a sense have been foreseen, is not negligence. If therefore, for example, a party invites others-on his premises, he will be held to
See, also, next page (472) which is as follows: “A number of cases lay down the rule 'that an owner of premises owes no duty with reference to the safety or immunity from injuries of trespassers ' thereon. Other authorities declare that the liability of a proprietor in such circumstances is'only that he shall not be grossly negligent, and shall abstain from the infliction of injuries by active misconduct or wanton
See, also, Railway Co. v. Fitzsimmons, 31 Am. Rep. 208; Schilling v. Abernethy (Pa.) 3 Atl. 792, 56 Am. Rep., 322; Cauley v. Railroad Co., 40 Am. Rep., 667; Insurance Co. v. Groom, 27, Am. Rep. 689; and Plummer v. Dill (Mass.) 31 N. E. 128, 32 Am. St. Rep. 463. These authorities all recognize the general rule as stated in the opinion, but also announce the rule to be that, when the owner of land makes an excavation or other dangerous thing thereon, at a place where persons are likely to he injured by reason thereof, and the owner has reason to anticipate such injuries, and fails' to- provide reasonable means to protect them from injury, he is responsible, although the injured persons are technical trespassers. This rule was also approved by this court in the case of Reeves v. French, 45 S. W. 771, 46 S. W. 217, 20 Ky. Law Rep. 220. Reeves sued French for damages for injuries received by reason of his falling into a chute or cellar, under French’s house. Reeves claimed he fell in from the sidewalk. French contended that Reeves left the street voluntarily, and walked across a vacant lot until he arrived a.t the cellar, which was
The proof in this case shows that this vat was 12 feet long, 3 feet wide, and 6 feet deep, and was filled at all times with boiling or scalding water, which was level with the surrounding ground, and one end of the vat was less than 4 feet from the sidewalk. It was not inclosed in any way, nor was there anything to give warning of its presence to persons approaching it. It was situated near the center of a city containing 25,000 or 30,000 inhabitants-, much travel near it, and in a place which would attract persons, to enter after dark, for the purpose stated in the opinion. The proof shows that appellant had no knowledge of the vat, and that appellee’s manager had been warned of the danger to persons in leaving it uninclosed and exposed; and also appellant offered to prove that another person, previous to appellant’s injury, had fallen into the vat, and received injuries in the same way. The court refused to allow this proof, but it was competent. In view of this evidence, the case should have been submitted to the jury, on
For these reasons, I dissent from the opinion of the court.