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which we think is the true one. The rule to enter a verdict for the
defendant must therefore be made absolute.

Rule absolute.^

^Accord: Collins v. Decker, 120 N. Y. App. Div. 645 (1907)., "the test of
liability is whether the excavation adjoins the highway or is in such close
proximity thereto that a person while on the highway slipping or stumbling or
making a misstep falls into the excavation, but that such liability does not
exist where the traveller deviates from the highway for ever so short a dis-
tance and becomes a trespasser before he falls." Cochrane, J., p. 649; Hadley ^^
V. Taylor, L. R. i C. P. 53 (1865), hoist hole fourteen inches from sidewalk;
Barnes v. Ward, 9 C. B. 392 (1850); Hutson v. King, 95 Ga. 271 (1894),
traveller falling from sidewalk "casually". Strange v. Bodcaw Co., 79 Ark.
490 (1906), frightened horse backing down embankment; aider, where a
frightened horse runs into a pond fifteen feet from highway, Horstick v.
Dunkle, 145 Pa. 220 (1891) ; Myers v. Snyder, i Brightly, N. P. 489 (Pa. 1848),
imfenced cellar of building under construction.

If, however, an occupier obstruct the sidewalk he must expect and prepare
for deviation onto his land, Vale v. Bliss, 50 Barb. 358 (N. Y., 1868)^ but not
if the sidewalk is obstructed by a stranger, Clapp v. La Grill, 103 Tenn. 164


In some, few cases it is held that distance of excavation frorn highway is
only one consideration, the question being whether the excavation is dangerous
to travel; Norwich v. Breed, 30 Conn. 535 (1862); a case turning largely on



Toward Those Coming Voluntarily Upon the Premises.

(a). Trespassers.



Appellate Court of Illinois, ist. District, 1881. 10 ///. App. 474.

The defendant owned a plot of ground bounded on the north by
a fork of the Chicago river, which had been dredged out so that
the bank was well within the defendant's original property line.
This tract was enclosed by fences, but there was evidence to show
that they were badly broken down, leaving gaps through which per-
sons could pass without obstruction.

It appears, however, that in point of fact, great numbers of
persons, consisting of those employed about the Stock Yards and
packing houses and others, were daily in the habit of going across
said land to the bridge over the river on Laurel street, and other
points, that route being shorter and more direct than by way of
Transit avenue, and that paths were worn in various directions

the construction of a statute making it the city's duty to fence a street if
raised so as to endanger traffic; Young v. Harvey, 16 Ind. 314 (1861) ; Sanders
v. Reister, i Dak. 151 (1875), one deviating, if not negligent or an intentional
trespasser, may recover if the jury find that the excavation is so near the
highway as to be dangerous to those using it with care; Loii:e v. Salt Lake
City, 13 Utah, 91 (1896), a trespasser may recover for falHng into an excava-
tion 'if his trespass is unintentional and technical, being only such as he might
reasonably suppose the owner would permit without objection and not causing
any annoyance or injury to the owner.

In Massachusetts, it is held that since the town invites the public to use
the highways, it is its duty to fence the highway when an adjacent excavation
renders travel thereon dangerous and the abutting owner is not liable for
unguarded excavations on his land though directly adjacent to the highway,
Hozvland v. J'inccnt, 10 jMet. 371 (Mass. 1845) ; Mclntire v. Roberts, 149 Mass.
450 (1889) ; but generally it is no defense that one other than the defendant is
bound to fence an excavation he creates, Weitor v. Dunk, 4 F. & F. 298 (1864).

That plaintiff was sitting on defendant's step, when struck by a stone
falling from the house, did not make him a trespasser, since he was using the
step reasonably as an incident of his right to travel on the street, Murray v.
McShanc, 32 Md. 217 (1879) ; so in U'halcy v. Bank, 28 Pa. S. C 53i (1905)-
a rod charged w-ith electricity placed in front of window to prevent annoy-
ance from crowd was held a danger to traffic, and plaintiff was allowed to
recover though he put his hands on it intentionally.

An owner is not liable to one approaching the excavation from any
direction other than the highway though in fact the excavation substantially
adjoins it, Dobbins v. R. R., 91 Tex. 60 (1897), P- 65, semblc.

An occupier is not bound to guard natural depressions nor artificial ex-
cavations existing before the highway is dedicated, the public takes the road
with all the dangers incident to adjacent conditions then existing. Cooper v
Walker, 2 B. & S. 770 (1862") ; though mere long continuance of an excavation
is no defence, Coupland v. Hardingham. 3 Camp. 398 (1813).

One diverting an ancient public path by statutory authority is bound to
fence off the old path, if it diverges at a point where the public might other-
wise go astray and get into danger, Hurst v. Taylor, L. R. 14 Q- B. D. 918


across said land by persons passing over it ; but there is no evidence
tending to show that it was used in this manner by the invitation,
permission or consent of the defendant ; though it can scarcely be
doubted that the officers of the defendant were aware of the fact
that it was being so used.

The evidence shows that, notwithstanding the construction of
the catch-basins, a large amount of animal and other matter was
discharged into the river, and that said matter formed a scum or
crust on the v, ater at times several inches in depth, the surface of
which became dry, cracked and covered with dust, so as to present
the appearance of solid earth, though entirely incapable of support-
ing the weight of a person stepping onto it. The witnesses describe
it as resembling the bottom of a pond from which the water had
dried up, showing that it was of such a character as to be likely to
induce one not acquainted with it to suppose it to be dry land ; and
the evidence tends to show that the condition of the premises in
this respect was known at the time to the officers of the defendant.

On a certain day in April, 1878, the plaintifif's intestate, who,
so far as appears, had no acquainance with the premises in question,
went to a place a considerable distance southeast of said premises,
for the purpose of obtaining employment, and was directed by the
person to whom he made application to go to work at another place
situated a mile or two northwest of said premises. He started for
the place to which he was directed, and, so far as the evidence shows,
nothing more was seen of him. As he failed to return to his home,
search was made for him, and after several days his body was found
in the river, on the defendant's land, a few feet from the bank, at
a point where the surface of the water was covered over with a
scum or crust such as it above described.^

Bailey, J. The deceased, at the time of his death, was upon
the defendant's land without any invitation from the defendant,
either express or implied, and without legal right. Many other per-
sons, it is true, were in the habit of passing over said land of their
own motion and for their own convenience, and it does not appear
that any objection to their so doing was ever raised by the defend-
ant, but these facts, at the utmost, only raise an implication of a
license to the deceased, to do the same thing, but gave him no right
beyond that of a mere licensee.

The hole, chasm or trap, if it may be so called, into which he
fell, was not constructed by the defendant, nor was it the result of
any affirmative act on its part. The excavation was made by other
parties without its procurement or consent. The refuse matter
which formed the scum or crust on the surface of the water came
from the packing houses of other parties, in which the defendant
had no interest, and over which it had no control. If the defend-
ant was chargeable with negligence at all, it was in failing to abate
the nuisance, after it had been created by others, or to surround it
with such protections or warnings as would have been sufficient to
ward off such persons as might see fit to traverse that portion of

^The facts are restated.


its grounds. In other words, its negligence, if any, was mere passive

It is a general rule of law, that the owner of private grounds
is under no obligation to keep them in a safe condition for the ben-
efit of trespassers, idlers, bare licensees, or others who come upon
them, not by any invitation, either express or implied, but for their
own convenience or i)leasure, or to gratify their curiosity, however
innocent or laudable their purpose may,be. * * *

This rule is doubtless subject to some qualifications. Thus vari-
ous cases are found where it is held that the owner who has set
spring-guns or other instruments of destruction upon his own
grounds for the defence of his property, is liable to trespassers
who, without notice of such contrivances, have entered upon such
grounds and received injury. Ilott v. Wilkins, 3 Barn. & Aid. 304;
Bird V. Ilolbrook, 4 Bing. 628; Hooker v. Miller, 37 Iowa, 613.

Another exception is where the owner permits dangerous pit-
falls or obstructions to remain on his land, so near a higJnvay, that,
combined with the ordinary incidents of travel, they result in injury
to persons or animals passing along the highway. * * *

There is also a class of cases constituting a further exception
to the rule above stated, where the owners of grounds are held liable
for injuries resulting to children, although trespassing at the time,
where, from the peculiar nature and exposed position of the danger-
ous defect or agent, the owner should reasonably anticipate such
injury to flow therefrom as actually happened. * * *

The distinguishing principle upon which all these cases rest is
that the persons injured were mere children, without judgment or
discretion, and likely to be drawn by childish curiosity, or by the
instincts and impulses of childhood, into places of danger. It is
therefore held to be negligence to leave traps or pitfalls exposed on
private grounds in the vicinity of public highways or other places
where children are likely to be found. * * *

It is apparent from what we have said that the present case
falls within neither of the exceptions above mentioned. The de-
ceased was a man of mature years ; the chasm into which he fell
was neither adjoining nor in the vicinity of a public highway, and
the defendant was in no way responsible for its original existence,
but merely for passively allowing it to remain without protection
or warning. Such being the facts, we know of no authority or prin-
ciple upon which the defendant can be held liable. The Supreme
Court of [Michigan, in the very well considered case of Hargreaves
v. Deacon, supra, in discussing the right of protection against pit-
falls in both highways and- upon private grounds, says: "If in a
highway or sidewalk, the duty of protection extends to all persons
who have a legal right to go there, or, in other words, to the whole
public, and it "depends upon that right; if on private property, not
open to the public, it applies less generally, and only to those who
have a legal right to be there, and to claim the care of the occupant
for their securitv while on the premises against negligence, or to
those who are directly injured by some positive act involving more
than passive negligence." * * *

Exception is taken to a number of the instructions given to


the jury at the instance of the plaintiff, but as we are of the opinion
that the verdict is not supported by the evidence, we need not take
time to consider them, but for the reason stated, the judgment will
be reversed and the cause remanded.

Judgment reversed.^


7 Taunton, 489 (1817) p. 522.

Dallas, J. The dift'erence is, between absolute and relative
rights, between that which is mine, exclusive of any right in others,
present or future, and that which is of a spreading, shifting posses-
sion, as air, water, etc., in which I have but a qualified possession,
a possession subservient to the future use by others. If I place a
log across a public path, and injury be thereby sustained, the soil
being my own, but the public, or individuals having a right of way
over it, and action will lie, because there is a right in oJiers to pass
along without interruption; but if there be no right of way, I may
with any view, and for any purpose, place logs on my own land,
and a party having no right to be there, and sustaining damage by
his own trespass, cannot bring an action for the damage so sustained.
So, in the case put of a ditch, I may not dig it, so as to interfere
with any public or private right, but within the limit of my own
property adjoining a common, and not separated from it by any
actual fence, I may dig a ditch, however wide; and man or beast
sustaining harm, having no right to be there, no action will lie. Such
was the case cited of the horse straying from the common, and fall-
ing into the pit, and in which it was determined that no action would
lie, first, because the owner had a right to do what he pleased with
his own land, and next, that the plaintiff could shew no right for
the horse to be there ; and yet, that a horse might, in the night or

^Accord: Blythe v. Topham, Cro. Jac. 158 (1607); Gramlich v. Wurst,
86 Pa. 74 (1878), excavation dug at such a distance from highway that a
person to reach it must become a trespasser; Chattanooga etc. R. R. v. Whee-
ler, 123 Ga. 41 (1905), plaintiff using disused freight house without permis-
sion for storing his goods; Lary v. R. R., 78 Ind. 323 (1881), plaintiff using
similar building as refuge from storm; R. R. v. Bingham, 29 Oh. St., 364
(1876) ; Buts V. Cavanaugh, 137 Mo. 503 (1897), a boy, who without permis-
sion went into an excavation on defendant's private property to get a piece of
wire, and w^as burned by fire smouldering therein, could not recover, though
an ordinance required all dangerous excavations to be fenced; McNeven y.
Arnott, 4 N. Y. App. Div. 133 (1896), a trespasser to gratify his curiosity
went into a runway leading to a cellar under construction, designed for use
of defendant's employes only; Anderson v. A''. Pac. R. R., 19 Wash. 340
(1898), plaintiff losing his way on dark stormy night fell into ditch fifty feet
from permissive path; Reeves v. French, 20 Ky. Law Rep. 220 ('1898).

Nor can a trespasser complain that an owner of land does not so conduct
his business as to make it safe for him to trespass on his premises, — Mergen-
thaler v. Kirby, 79 Md. 182 (1894), a boy entering defendant"? premises to
steal lead scalded by steam and hot water when the engineer, ignorant of his
presence, blew off from the boiler through a discharge pipe; but see Marble
V. Ross, 124 Mass. 44 C1878), one keeping a vicious^ stag in his field h'able
to persons injured while trespassing with notice of its presence: T-nnmis v.
Terry, 17 Wend. 496 TN. Y. 1837), vicious dog kept, for no useful purpose,
in field where boys come without leave to shoot.


day, stray from an open common into adjoining land, not separated
by any fence, was, as a proljablc conscciuence, as much to be fore-
seen, as that a hare might spring up, and a dog chase; or, if the
horse had escaped from the owner, and he had sustained damage in
the pursuit, would that have given him a right to damages for the
conseciuence of an escape, which he ought, in strictness, to have
prevented ? I may not keep a mischievous bull in a field through
which there is a right of way; but when there is no right of way, I
am entitled so to do, as was stated by Lord Kenyon in one of the
cases cited at the bar, and this, by way of illustration, for the very
purpose of shewing the distinction in question. The only case cited
on this part of the subject, as bearing the other way, is that of Town-
send against W'athen ; but in facts and circumstances it has no
resemblance to the present. The object in the former was to at-
tract, in order to destroy the dog; and in this, the immediate purpose
was to keep the dog from a situation, in which he might incur de-
struction. In Townsend against \\'athen, 9 East. 277 (1808). the
enticement w^as made to operate beyond the line of the defendant's
property, and to the destruction of the dog, where the dog had a
right to be; and this enticement constituted the foundation of the
action. It is, in effect, but the common case of nuisance.

V Court of Common Picas, 1828. 4 Bingham, 628.

The cause was tried at the Bristol assizes, 1825, when a verdict
was taken for the Plaintiff, by consent, damages 50/., subject to a
case reserved, with liberty to either party to turn it into a special
verdict. The following were the facts of the case : —

Before, and at the time of the Plaintiff's sustaining the injury
complained of. the Defendant rented and occupied a walled garden
in the parish of St. Phillip and Jacob, in the county of Gloucester,
in which the Defendant grew valuable flower-roots, and particularly
tulips, of the choicest and most expensive description. The garden
was at the distance of near a mile from the Defendant's dwelling-
house, and above one hundred yards from the road. In it there
was a summer-house, consisting of a single room, in which the De-
fendant and his wife had some considerable time before slept, and
intended in a few days after the accident again to have slept, for
the greater protection of their property. The garden was surrounded
by a wall, by which it was se])arated on the south from a footway
up to some houses, on the east and w^est from other gardens, and
on the north from a field which had no path through it. and was
itself fenced against the highway, at a considerable distance from
the garden, by a wall. On the north side of the garden the wall
adjoining the field was seven or eight feet high. The other walls
were somewhat lower. The garden was entered by a door in the
wall. The Defendant had been, shortly before the accident, robbed
of flowers and roots from his garden to the value of 20/. and up-
Avards ; in conse(]uence of which, for the protection of his prop-
erty, with the assistance of another man. he placed in the garden a


Spring gun, the wires connected with which were made to pass from
the door-way of the summer-house to some tuHp beds, at the height
of about fifteen inches from the ground, and across three or four
of the garden paths, which wires were visible from all parts of
the garden or the garden wall ; but it was admitted by the Defend-
ant, that the Plaintiff had not seen them, and that he had no notice
of the spring gim and the wires being there ; and that the Plaintiff
had gone into the garden for an innocent purpose, to get back a
pea- fowl that had strayed.

A witness to whom the Defendant mentioned the fact of his
having been robbed, and of having set a spring gun, proved that
he had asked the Defendant if he had put up a notice of such gun
being set, to which the Defendant answered, that "he did not con-
ceive that there was any law to oblige him to do so," and the De-
fendant desired such person not to mention to any one that the gun
was set, "lest the villain should not be detected." The Defendant
stated to the same person that the garden was very secure, and
that he and his wife were going to sleep in the summer-house in a
few days.

No notice was given of the spring gun being placed in the
garden, and before the accident in question occurred, another per-
son to whom the Defendant mentioned the fact of his garden having
been robbed of roots to the value of 20/., and to whom he stated
his intention of setting a spring gun, proved that he had told the
Defendant that he considered it proper that a board should be put up.

On the 2ist March 1825, between the hours of six and seven
in the afternoon, it being then light, a pea-hen belonging to the oc-
cupier of a house in the neighbourhood had escaped, and after flying
across the field above mentioned, alighted in the Defendant's garden.
A female servant of the owner of the bird was in pursuit of it, and
the Plaintiff (a youth of the age of nineteen years), seeing her in
distress from the fear of losing the bird, said he would go after
it for her: he accordingly got upon the wall at the back of the gar-
den, next to the field, and having called out two or three times to
ascertain whether any person was in the garden, and waiting a short
space of time without receiving any answer, jumped down into the

The bird took shelter near the summer-houses, and the boy's
foot coming in contact with one of the wires, close to the spot where
the gun was set, it was thereby discharged, and a great part of its
contents, consisting of large swan shot, were lodged in and about
his kneejoint, and caused a severe wound.

The question for the opinion of the Court was, Whether Plain-
tiff was entitled to recover; if so, the verdict was to stand; other-
wise a nonsuit was to be entered.

Wilde Serjt. for the Plaintiff.

The Defendant is liable in damages for the injury the Plaintiff
has sustained.

For the protection of property, no man has a right to resort to
violence greater than the occasion requires. The law does not allow
the apprehension of a mere trespasser, much less the infliction of
wounds or death. * * *


But it being clear from the foregoing autliorities, that such con-
duct would have been illegal, if the defendant had been present, and
had seen the plaintilY enter his garden, the absence of the defendant
at the time of the injury makes no difference in the case; more
especially where his own declarations have shewn so unequivocally
what were his intentions in case he had been present. Xo man is
permitted to do indirectly that which it is unlawful for him to do
directly. * * *

Merewether Serjt. for the defendant. It is admitted that a
trespasser may be repelled by force, if no more force be employed
that is necessary; but, during absence, a man can employ, for the
protection of his property, no less and no other force than that of
machines, which may repress offenders by the fear of pain or de-
tection ; and if they are so employed as not to molest another in the
exercise of his rights, there is no violation of the maxim. ''Sic utere
tuo lit alienum iion lacdas" , which applies to the active invasion of
another's rights, and not to the quiet protection of our own. Besides
which, in placing the gun he is making a lawful use of his own
property; a use in no degree affecting the rights of others. * * *

In Blithe v. Topham (i Rol. Abr. 88. Cro. Jac. 158), the pro-
prietor of a waste had dug a pit, a few yards only from a highway ;
a horse having fallen into it, it was holden the owner could not
recover damages.

The pit having been as fatal to the horse as a spring gun would
have been, the case is in point, and much stronger than the present,
there having been no notice at all, and no wall round the pit, as
there was round the garden of the present defendant, which in itself
operated as notice.

The main ground of the defence, however, is. that the Plaintiff
cannot recover for an injury occasioned to him by his own wrongful
act. Comnwdum ex injuria, non oritur; and it is equally the prin-
ciple of our law, that jus ex injuria non oritur. If a man place
broken glass on a wall, or spikes behind a carriage, one who wilfully
encounters them, and is wounded, even though it were by night,
when he could have no notice, has no claim for compensation. Fo-
lenti non fit injuria. The Defendant lawfully places a gun on his
own property ; he leaves the wires visible ; he builds' a high wall,
expressly to keep off intruders; and if. under those circumstances,
they are permitted to recover for an injury resulting from their
scaling the wall, no man can protect his property at a distance.

Wilde in reply.

No illustration can be drawn from the use of spikes and broken
glass on walls, &c. These are mere preventives, obvious to th*^
sight, — unless the trespasser chooses a time of darkness, when no
notice could be available, — mere preventives, injurious only to the
persevering and determined trespasser, who can calculate at the
moment of incurring the danger the amount of suffering he is

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