3 Ga. App. 161 | Ga. Ct. App. | 1907
1. The different aspects in which the liability of the owner or proprietor of premises for injuries received by persons present thereon might be viewed were pointed out and discussed by this court at some length in the case of Mandeville Mills v. Dale, 2 Ga. App. 609 (58 S. E. 1060). If the deceased was on the premises by invitation, express or implied, the proprietor of the saloon was under a higher duty to him than if he was there' -as a bare licensee. It is conceded that ordinarily the opening ■of a public place of business is an invitation to members of the public to come in and transact that business; that customers in a place of business where goods are sold are ordinarily not bare licensees; but it is said that in this case no such invitation is to be implied,, because, under the allegations of the petition, the plaintiff was a drunk man, and by the Penal Code, §443, “Any .seller of spirituous liquors who shall sell or furnish liquors or •other intoxicating drinks to any person who is at the time intoxicated or drunk shall be guilty of a misdemeanor.” In the absence ■of an allegation that the defendant had been accustomed to sell to the deceased or others when they were drunk, or any other allegation tending to show that the deceased had reasonable cause to
We are not to be understood as holding that one can be regarded, as an invited person in a saloon only when he is approaching the; counter to buy or when he is actually drinking. On the contrary, a person who-has no intention of drinking at all may stand in this, relation. For instance, if the proprietor places pictures, baseball scores, free lunches, musicians, or other things in his saloon, to-attract persons there, with a view of advertising his business and with the hope that some or all of them may drink at his bar, such persons as come in response to this implicit invitation are more; than bare licensees. So also, those persons who, having recently been customers or presently intending to be, with the proprietor’s, acquiescence and in accordance with common usage, sit or stand, in the saloon, are more than licensees. Under this petition, however, the attempt to raise the. implication of an invitation rests, solely upon the fact that deceased entered to buy liquors, — a.' thing he could not reasonably expect to do in his drunken condition.
3. The owner or proprietor of the premises is, however, not free-from' duty to a licensee. The premises must not contain pitfalls,, man-traps, and things of that character. Mandeville Mills v. Dale, supra. “There is a class of decisions holding that it is. ■ actionable negligence for the owner of grounds, over which people-are accustomed to pass, to expose thereon anything which is peculiarly dangerous. These decisions proceed on the ground that-such conduct is a wanton violation of the obligations which, in a state of society, every individual holds to every other. . . This, is not a negation of the doctrine that the owner of a private building being erected on a private lot owes'no duty to trespassers and idlers, or persons visiting the premises merely for their individual benefit or for curiosity, other than that he shall inflict upon them.
In the case of Newark Electric Co. v. Garden, 78 Fed. 74 (23 C. C. A. 649, 37 L. R. A. 725), Judge Dallas, after referring to the general rule that as to trespassers the landowner may keep his premises in such condition as he sees fit, quotes approvingly from Hydraulic Co. v. Orr, 83 Pa. St. 332, as follows: “It is true that, where no duty is owed, no liability arises. . . But, as has often been 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;” and adds the following: “It makes no difference, where the circumstances give rise to duty, that the plaintiff was ‘technically a trespasser.’ Schilling v. Abernethy, 112 Pa. St. 437 (3 Atl. 792, 56 Am. R. 320). The true question is: Was he ‘a trespasser there, in a sense that would excuse the defendant for acts of negligence, . . whether .the owner or occupant of 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 Railway Co. v. McDonald, 152 U. S. 262 (14 Sup. Ct. 619, 38 L. ed. 434), the question was thus stated, and, in answering it, the Supreme Court held that, under the circumstances of that case, the person injured could not be regarded ‘as a mere trespasser, for whose safety and protection, while on the premises in question, against the unseen danger referred to, the railroad company was under no duty or obligation whatever to make provision.’ The fact that, in aE these eases, the court gave due weight to the circumstance that, in each of them, the person injured was a child, would not justify us in restricting the application, of the principle upon which they were decided to cases which present the same peculiarity. The doctrine of all of them is that a duty of care may, by reason of the circumstances, be due from the owner of property to one who is technically a trespasser upon it; and the youth of those most likely to suffer from a failure to discharge such duty is simply one of the circumstances which, when present, is to be considered with the rest. The opinion of the court in the
In Union Pac. R. Co. v. McDonald, 152 U. S. 279 (14 Sup. Ct. 619, 38 L. ed. 434), a boy stepped into slack lime which was spread upon the ground, but which upon its surface gave no indication of danger. Justice Harlan, speaking for the court, says: “Applied to the ease now before us, they require us to hold that the defendant was guilty of negligence in leaving unguarded the-slack pile, made by it in the vicinity of its depot building. It. could have forbidden all persons from coming to its coal mine for the purposes merely of curiosity and pleasure. But it did not do so. On the contrary, it permitted all, without regard to age, to visit its mine, and witness its operation. It knew that the usual approach to the mine was by a narrow path skirting its.
Heavy articles which are apparently in stable equilibrium or which are usually found securely fastened, but which are in fact in unstable equilibrium and not fastened, may fairly be placed in the same category with pitfalls and man-traps. The counter in this case — to borrow an expression from the case of Newark Co. v. Garden, 78 Fed. 79 (23 C. C. A. 649, 37 L. R. A. 725), was “not a trap, for there was no intention to ensnare, but was an
There is another general rule upon which the defendant relies with great confidence, — that the owner is not responsible for an injury occasioned by putting one of his instrumentalities to a use for which it is not intended. In this case the petition alleges that one of the uses for which this counter was intended was that identical use the deceased attempted to make of it. Besides, the general rule is not so universal of application as to exclude a finding of negligence in those cases where the owner of premises, who has .a reason to apprehend the innocent presence of persons thereon, knowingly allows his property to be or to remain in such situation that a visitor, although making no use of the premises other than a reasonably prudent person under like circumstances would be expected to make, is liable to be injured by coming in contact with what appears to be in its normal condition and safe, when as a matter of fact it contains a secret and hidden danger. See Mayor of Jackson v. Boone, 93 Ga. 662, 665. Suppose the proprietor of this saloon had purchased a keg of nitroglycerine for the purpose of doing some blasting and had temporarily set it down in the middle of his saloon floor where a casual passer was liable to kick against it; would he, in response to a suit by one who through inadvertence had run against it and exploded it, be heard to say, as a complete defense, that the deceased put the nitroglycerine to a purpose for which it was not intended ? Compare Babcock v. Johnson, 120 Ga. 1035 (48 S. E. 438); also Schofield v. Wood, 170 Mass. 415 (49 N. E. 636).
3. The trial judge, in addition to holding that the defendant owed the deceased no duty, also held that the alleged negligence w&s not the proximate cause of the injury. We presume that he based this upon the view that the act of the deceased in stumbling and catching -hold of the counter was the proximate cause. It took the concurrence of the act of the defendant, in leaving the ■ counter in a state of unstable equilibrium, and the act of the deceased in grasping it, to cause the harm. The counter, if the de
4. We will next take up the contention that the admitted voluntary drunkenness of the deceased precludes a recovery. That school of jurists who consider torts as akin to crimes apply to the case of a- drunk man, as to his capacity both for negligence and for contributory negligence, the ancient maxim that drunkenness is no
5. We will now apply the principles above stated more specifically to the case at bar. If the defendants had reason to anticipate the presence of persons in their barroom, they were under' the duty, toward such as were either expressly or impliedly invited there, to use ordinary care and diligence to see that the premises were safe, and toward licensees to use such diligence (not exceeding ordinary care and diligence) as the particular circumstances required in anticipating the likelihood of their coming, and, after-they came and their presence was known, to use ordinary care not to injure them by anything done upon the premises, and not to expose them to other peril. The jury, under the facts alleged, would be authorized to find that the defendants might reasonabty have anticipated that the deceased and other persons would come into the saloon and within range of the counter; and likewise that, by ordinary foresight and prudence, they should have anticipated,, after they actually saw the deceased in the bar, that he in his-drunken condition might stumble against, lean upon, catch hold of, or otherwise come into casual contact with the counter. If the jury should find that a reasonably prudent man, under these circumstances, would have apprehended the danger in which the deceased was thus placed, then the duty of using ordinary care to thwart that danger immediately devolved upon them. If the presence of the deceased was actually known, or, if not known, should!