55 N.J.L. 307 | N.J. | 1893
The opinion of the court was delivered by
By the record sent up in this case it appears that the non-suit was granted on the ground that there was no evidence that the defendants had knowledge that any of their licensees had been taking any other way across their lot
In Vanderbeck v. Hendry, 5 Vroom 467, the Supreme Court held that mere permission to pass over dangerous-lands, or an acquiescence in such passage for the benefit or convenience of the licensee, creates no duty on the part of the owner except to refrain from acts willfully injurious. The premises on which the injury in that case happened were-private grounds, used for a lumber yard, on which lurnber was piled, leaving passageways between the piles for the convenience of loading and unloading. The yard was not enclosed, and persons were in the habit of passing through these gangways to go from street to street. The plaintiff, out of curiosity, went into one of the gangways and was injured by the falling of a pile of lumber which had been piled in a negligent manner. The court held that an action for such injury could not be maintained; that mere permission, or passive license to enter upon lands, relieved a person entering: premises from the responsibility of being a trespasser, but that he enjoyed the license, assuming the ordinary risks of the nature of the place and the business carried on upon it. This-doctrine was reaffirmed in Matthews v. Bensel, 22 Vroom 30. It was there held that an owner of land is not bound to fence dangerous machinery on his premises in favor of a mere licensee. All that may be said in favor of a mere licensee is that he is only not a trespasser, and the general rule of law is that the owner and occupier of private grounds is under no-obligation to keep them in a safe condition for the benefit of trespassers, idlers, bare licensees and others who come upon the premises for their own convenience or pleasure, however innocent their purpose may be. 1 Thomp. Neg. 303.
A different rule prevails where the entry or use of lands is-of right or by invitation of the owner, as distinguished from an entry by mere license or sufferance. An owner of lands
Hounsell v. Smyth, 7 C. B., N. S., 731, is the leading case illustrating the first of these propositions. The question arose upon demurrer to a declaration, which set out that the defendants were seized of a certain waste upon which was a quarry, situate between two public highways, that was worked; that the waste was unenclosed and open to the public, and that all persons having occasion to pass over the waste had been used and accustomed to go upon and across the same without interruption or hindrance from, and with the license and permission of the owners of the waste. The declaration further alleged that the defendants left the said quarry unfenced and unguarded, and used no means for protecting persons passing over the said waste land from falling into the said quarry. It was held that the declaration did not set out a legal cause of action. Williams, J., said: “Under these circumstances, the law imposes no duty upon the proprietors of the waste to fence the quarry, nor does it render them responsible to persons who may deviate from one or the other of the roads and stray upon the waste. * * * Ho right is alleged ; it is merely stated that the owners allowed all persons who chose to do so, for recreation or for business, to go upon the waste without complaint — that they were not churlish enough to interfere with persons who went there. One who thus uses the waste has no right to complain of an excavation he finds there. He must take the permission with its concomitant conditions, and, it may be, its perils. Suppose the owner of land near the sea gives another leave to walk on the edge of a cliff; surely, it would be absurd to contend that such permission cast upon the former the burthen of fencing.”
Corby v. Hill, 4 C. B., N. S., 556, is the leading case on the second of these propositions. The suit was brought to recover for injuries sustained by coming in collision with a
Corby v. Hill was distinguished in Hounsell v. Smyth from the case then in hand in that, as was said by Williams, J., “in that case [Corby v. Hill] the defendant held out an inducement to persons to come upon the land by permitting it to be used as a means of access to his house, and, therefore, he was bound to warn persons so using the road of the obstruction which had been placed upon it.”
' The cases illustrative of the duty imposed upon the owner or occupier of lands to exercise care for the safety of persons coming upon the premises by his invitation, are quite numerous : Chapman v. Rothwell, EL., B. & E. 168; Indermaur v. Dames, L. R., 1 C. P. 273; S. C., 2 Id. 311; White v. Franet, 2 C. P. Div. 308; Smith v. Docks Co., L. R., 3 C. P. 326; Wright v. L. & N. W. Ry. Co., 1 Q. B. Div. 252. They are classified in Big. Torts 697 — 701, and in 1 Thomp. Neg. 307-317. In this class of cases the words “ invite,” “ allure,” “induce,” “leads,” and words of like import, are used to characterize the conduct of the owner or occupier of lands
In Heaven v. Pender, 11 Q. B. Div. 503, 508, 512, Brett, M. R., commented upon the inaccuracy of the word “ invitation,” in its ordinary sense, when used to express the circumstances under which the owner of land incurs a duty in favor of persons coming upon it. The principle he deduced from the cases is, “ that whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense, who did think, would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances, he would cause danger of injury to the person or property of another, a duty arises to use ordinary care and skill to avoid such danger.” And after commenting upon the form of pleading suggested by Willes, J., in Corby v. Hill, speaking of the phrase “ used by invitation,” the Master of the Rolls said : “ The real value of the phrase may be said to be that invitation imports knowledge by the defendant of the probable use by the plaintiff of the article supplied, and therefore carries with it the relation between the parties which establishes the duty.” The proposition adopted by the Master of the Rolls was approved by Hawkins, J., in Trussell v. Handyside, 20 Q. B. Div. 359, 363. It was not concurred in by Lord Justices Cotton and Bowen in Heaven v. Pender, these justices placing their opinion in favor of the plaintiff’s recovery on the ground that the dockowner, having provided the dock for the repair of vessels, invited all the persons coming there on the business in which the dockowner was interested, to use the dock and its appliances as incident to the use of the dock. To such persons they held that the dockowner was under an obligation
In Holmes v. N. E. Ry. Co., L. R., 4 Exch. 254, a workman going into the private grounds of a railroad company to assist in unloading coal was allowed to recover damages for an injury sustained by the insecurity of a flagged path in the yard. Channell, B., in expressing his judgment, said : “ The real difficulty is not in ascertaining what the law is, but in applying it to the facts in the case. I quite concur in the rule laid down by the cases, that where a person is a mere licensee, he has no cause of action on account of dangers existing in the place he is permitted to enter. Now, in one sense the plaintiff was a mere licensee, and the word mere has a very qualifying operation.” The learned judge then held that the fact that the plaintiff was upon the premises for the transaction of business “ prevents the case from being one of a mere licensee.” Cleasby, B., said: “ The question of mere license does not arise; for, as soon as you introduce the element of business, which has its exigencies and its necessities, all idea of mere voluntariness vanishes.” This case was affirmed in the Court of Appeals. L. R., 6 Exch. 123.
In some of the cases the phrase “accustomed use” is employed or dwelt upon as indicative of the circumstances under which such a liability is imposed. This expression in its broad sense is apt to be misleading, for it would apply to the case of an owner who suffers his land to lie waste over which the public, by his passive acquiescence, is permitted to pass and rejDass at pleasure; a condition under which it is well settled that no liability is imposed on the owner for the safety of the premises. Indeed, it is impracticable to lay dowu any precise rule, in set terms, which shall embrace all the cases within and exclude all the cases without the range of an owner’s liability for such injuries. The utmost that can be done is to state in general terms the controlling principle that the liability of an owner or occupier for the condition of his premises arises where the plaintiff was induced to make the use of the premises, in the course of which he sustained the injury sued
Granting that it appears that a plaintiff’s entry upon premises was by the invitation of the owner, a question may also arise, whether, at the time the injury was received, the plaintiff was in that part of the premises into which he was invited to enter. The owner’s liability for the condition of the premises is only co-extensive with his invitation. A person on private grounds by invitation of the owner, going of his own volition into other parts of the premises, exceeds the bounds of his invitation, and if he does not thereby become a trespasser, goes out of the way to create a risk for himself. Sullivan v. Waters, 14 Ir. C. L. 460; Ivay v. Hedges, 9 Q. B. Div. 80; Batchelor v. Fortescue, 11 Id. 474; Zoebisch v. Tarbell, 10 Allen 385 ; Victory v. Baker, 67 N. Y. 366; Diebald v. P. R. R., 21 Vroom 478. In this branch of the case, evidence of the usual custom, with respect to the parts of the premises into which persons were admitted who enter the premises for the purpose for which the invitation was extended, is competent to show the extent of the implied invitation. Gilbert v. Nagle, 118 Mass. 278; 1 Thomp. Neg. 309.
In the case now in hand, the evidence that was in when the non-suit was granted showed these facts. The water closet was built by the library company for the accommodation of its tenants and others using the building for the purposes to which it was applied. Originally the entire lot was enclosed from the street by a fence extending across the front. Access to the water closet might then be had by turning the easterly corner of the building and going along the brick walk at the side of the building. Shortly after 1866
The contention of the defendants is that a safe way to the water closet having been provided by them over the brick walk alongside of the building, the plaintiff took the path across the grass plot at her own risk. To sustain this contention the counsel quoted the remark of Martin, B., in Boloh v. Smith, 7 Hurlst. & N. 736, 745, that “ inasmuch as there was another way by which the plaintiff might have gone, but voluntarily chose the one which was out of order, he has no right of action against the defendant.” It will be observed that this remai’k of the learned judge was made in a case in which the danger that lay across the path the plaintiff chose to take was open and visible. In that case the workmen on a government dock were permitted to use water closets erected for their accommodation, and for that purpose to use certain paths across the dockyard. The defendant erected across one of these paths a revolving shaft partly covered with planks. The plaintiff, a workman, having gone along the path to the water closet, stumbled, and, on putting out his hand to save himself, his arm was caught in the shaft and injured. There was another path along which the plaintiff might have gone, but the one he used was more convenient. It was held that a suit for this injury could not be main
Bolch v. Smith decided the abstract legal proposition that no duty devolves by law upon an owner of premises to care for the safety of a mere licensee, who must take the condition of the premises and its perils.as he finds them. That decision has no relevancy to the facts of this case. The mere fact that there is one way that is safe and another that the owner has made unsafe does not, as a matter of law, determine the non-liability of the owner for an injury sustained by the licensee in using the latter. In an action by a passenger against a railway company for an injury received in leaving a passenger station, this court has held that a passenger using a way from a railway station, which, by the recognition and assent of the company, was apparently held out as a passageway for the entrance and exit of passengers, is not concluded from recovering damages for injuries sustained from the dangerous condition of that way solely on the ground that the company had provided another way that was safe, which the plaintiff might have taken. Trautman v. Delaware, Lackawanna and Western R. R. Co., 23 Vroom 169. The case turns upon the question whether the path taken by the plaintiff had, by its
After the change in the fence, in 1866, the passageway alongside the building became inconvenient to those going to the water closet through the front gate, and the evidence tended to show that, after this change in the fence, the brick walk alongside the building was to a great degree disused. One witness describes it as overgrown with weeds. Another witness, who seems to have been a member of the society from 1866, testified that she always used the path across from the gate in going to the water closet, and that she never used the brick walk alongside the building. Witnesses describe this path as “ a beaten path,” “ a pathway that could be distinguished on the grass,” “ the beaten path,” “ about the usual way,” “ a footpath showing its marks upon the grass where it had been trodden,” “ a path that could be discerned by any one,” “ a pathway used regularly by members of the society whenever they wanted to use it for twenty years.” The plaintiff, who had been a member of the society since 1875, ■testified that she had used the path many times to go to the water closet. The defendants, as a library company, occupied the first story of the building, and had charge and control of the building, except as the second story was let to tenants, and also had charge and control of the side lot. The evidence tended to show the continuous use of this path by the members of the society for many years as a means of access to the water closet, and that this use of the path was with the knowledge of the defendants. The society had been accustomed for many years to hold its meetings on Monday nights, and it is a legitimate inference from the evidence that the time of these meetings was known to officers and employes of the company, whose knowledge is imputable to the defendants. The well was dug by the direction of an officer who seems to have had charge of the building and grounds. It ■was a danger placed in the path — “ something in the nature
On this evidence we think there should not have been a non-suit. The judgment of non-suit should be reversed.
For affirmance — None.
For reversal — The Chancellor, Chief Justice, Abbett, Depue, Dixon, Lippincott, Magie, Reel, Yan Syckel, Bogert, Clement, Smith. 12.