72 Miss. 200 | Miss. | 1894
delivered the opinion of the court.
The plaintiff rests the cause of action, in the first count, upon this state of case: That defendant had long owned a lot in Flora bounded by two of the main thoroughfares; that the lot was vacant, except for his storehouse, which covered a cistern; that the storehouse had long been used as a place of business; that the entire public used, at defendant’s invitation, knowledge, and consent, this vacant lot as a thoroughfare and common in passing from street to street, and also so used two paths over said lot within three and eleven feet, respectively, of the cistern; that the cistern was within twenty-three feet of the pavement; that, in the winter of 1890, the store was burned, but for some time thereafter defendant kept it- guarded and advertised so as not to be dangerous to passers by and himself, and continued to use it as a cistern for some time, still guarding and advertising it; that it finally caved in, and he abandoned its use and removed the guards and advertisements which would warn and protect those using the highway, or unconsciously straying therefrom, from danger, but wantonly and carelessly left said cistern as a “ menace to the lives and safety of man and beast, within such close proximity to the highway that, under ordinary circumstances, he knew it -was dangerous to those using the highway, ’ ’ etc.; ‘ ‘ that, during the winter of 1893, appellant, a stranger, while carefully using the highway, the night being dark, rainy and cloudy, and there being nothing to show where the highway ended and the vacant lot begun, strayed therefrom, and, whilst so bewildered and lost, fell into said cistern and ivas injured.”
The second count varies the cause of action by adding that the defendant, while using the store and the vacant lot, constructed, within three or four feet of said cistern, then protected, a hitching post for horses and mules, and invited and induced
The third count proceeds on the ground that the cistern was a public nuisance. A demurrer was interposed on the grounds that the declaration showed no negligence on defendant’s part, but contributory negligence on plaintiff’s part. The demurrer was sustained and the suit dismissed, and this action of the court is the error assigned.
In Beck v. Carter, 68 N. Y., 283, Carter owned the United States Hotel. There was a vacant space of forty ox fifty feet between the hotel and Buell street, and " this vacant space was used as a public place, and as part of the street. ’ ’ The hotel was burned in 1868, and rebuilt in 1872, and, in the- interim, the same use was continued. The court, says: " It is manifest that if the plaintiff had kept within the original bounds of the alley, he could not have fallen into the excavation. It was lie-cause he strayed and deviated therefrom, and went upon the defendant’s lot, that he, was injured. But it cannot beheld, upon the evidence, that the plaintiff was a trespasser in going there. There was, it is true, no public easement or right of way over the defendant’s lot. It was his private property, and
In the case of City of Norwich v. Breed, 30 Conn., 535, the court reviews and distinguishes the English cases referred to,
These authorities clearly establish the principle that if the defendant here, while using his lot and store, invited and induced the public to use his lot and the two paths as part of the highway, having his cistern then guarded, and after the. fire left it open, still, however, for some time, guarding it, but afterwards removed the guards and advertisements, so as to leave the cistern dangerous to those who, exercising ordinary care, used either the highway or the paths as parts or part of the lot allowed by him to be used as part of the highway by the public, such use of such paths as part of the highway, having been uninterruptedly continued, he is liable, unless the plaintiff’s own conduct was the proximate cause of the injury; and to this we limit our decision in this case. It need only be said further that, in this view, plaintiff, in no proper sense, can be deemed a trespasser, without reference to whether the other facts alleged, that he “strayed, a stranger, bewildered and lost, from the highway, thinking the path he took was the highway, it being apparently the commonly used way, and there being nothing to show where the highway ended, and the vacant lot begun. ” Whether these facts would take’him out of the category of trespasser, on the reasoning of the Dakota
The judgment is reversed, demurrer overruled and the cause remanded.