Francis H. (Francis Hermann) Bohlen.

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about to endure, and who will, consecjuently, desist from his enter-
prise whenever the anticipated advantage is outweighed bv the pain
which he must endure to obtain it.

Best C. J. I am of opinion that this action is maintainable. If



284 BIRD V. HOLBROOK

any thing which fell from me in Uott v. Wi\]iS ^ were at. variance
with the opinion I now express, I should not hesitate to retract it,
but the ground on which the judgment of the Court turned in that
case, is decisive of the present; and I should not have laboured tho
point that the action was not maintainable in that case on the
ground that the plaintiff had received notice, unless I had deemed
it maintainable if no notice had been given. Abbott C. J. says:
"Considering the present action merely on the ground of notice, and
leaving untouched the general question as to the liability incurred
by placing such engines as these, where no notice is brought home
to the party injured, I am of opinion that this action cannot be
maintained." Baylcy J. says: "This is a case in which the plaintiff
had notice that there were spring guns in the wood." "The declara-
tion assumes the law to be, not that the mere act of placing these
guns in a man's own ground is illegal, and punishable by indict-
ment, but that a party doing that act may be liable to an action,
provided he does not take due and proper means, by giving notice,
to prevent the injury which those engines are calculated to produce."
Holro\d J. says: "I am of opinion that this action is not maintain-
able, on the ground that the plaintiff had notice that the spring
guns were placed in the wood in question." "So far as he was con-
cerned, the cause of the mischief could not be considered as latent,
and the act of letting off the gun, which was the consequence of his
treading on the wire, must be considered wholly as his act, and not
the act of the person who placed the gun there." And I am re-
ported to have said, expressly, "Humanity requires that the fullest
notice possible should be given, and the law of England will not
sanction what is inconsistent with humanity."

It has been argued that the law does not compel every line of
conduct which humanity or religion may require ; but there is no
act which Christianity forbids, that the law will not reach: if it
were otherwise, Christianity would not be as it has always been
held to be, part of the law of England. I am, therefore, clearly of
opinion that he who sets spring guns, without giving notice, is guilty

^3 Barn. & Aid. 304 (1820), one setting spring guns on his premises is
not liable to a trespasser who with knowledge thereof none the less persists
in trespassing 'thereon and is injured. Bayley, J., p. 311. "The maxim of
law, volenti non fit injuria, applies; for he voluntarily exposes himself to the
mischief which has happened. * * * He had no right to enter the wood."
Holroyd, J., held that since the plaintiff knowing the peril went to meet
it, the injury was due to his own act, alitcr, if the danger was latent, then
'"he would be the mere instrument of producing that which resulted from a
prior act done by another," i. e., the setting of concealed spring guns. Deane
V. Clayton, 7 Taunt 489 (1817), a dog chasing hares in defendant's wood
ran upon snares set to protect the game; it was held by a divided court that
no action lay— though in Tozvnsend v. Waihen. g East 277 (1808), it was held
that when an occupier of land by a trap baited with strong smelling meat
tempted dogs into reach of the trap he was liable. But see Johnson v. Patter-
son. 14 Conn. I ("1840), farmer placing meal mixed with arsenic liable to
owner of chickens which come on his land and are poisoned, the poison being
placed there because of the frequency of their trespasses ; here the defendant
gave notice to the owner of the chickens of his intention to do' as he did.
In Loomis v. Terry, 17 Wend. 496 (N. Y. 1837) an owner who allows a
ferocious dog to run at large upon his premises held liable even to a tres-
passer; accord: Wolf v. Ckalker, 31 Conn. 121 (1862); contra: Lowery v.
II alker, L. R. 2 K. B. 433 (1909), reversed on appeal because the plaintiff was
held to be a licensee; see Marble v. Ross, 124 Mass. 44 (1878), where, how-
ever, the trespassing plaintiff knew that the defendant kept the vicious stag in
his field.



BIRD V. HOLBROOK 385

of an inhuman act, and that, if injurious consequences ensue, he
is Hable to yield redress to the sutlerer. But this case stands on
grounds distinct from any that have preceded it. In general, spring
guns have been set for the purpose of deterring; tiie Defendant
placed his for the express purpose of doing injury; for, when called
on to give notice, he said, "If I give notice, 1 shall not catch
him." He intended, therefore, that the gun should be discharged,
and that the contents should be lodged in the body of his victim,
for he could not be caught in any other way. On these principles
the action is clearly maintainable, and particularly on the latter
ground. The only thing which raised any doubt in my mind was
the recent act of parliament ; and if that had been purely prohibitory,
there would be great weight in the argument which has been raised
on it; because in a new prohibitory law w^e have the testimony of
the legislature that there was no previous law against the thing pro-
hibited. Hut the act is declaratory as to part, and prohibitory as
to part ; declaratory as to the setting of spring guns without notice,
and the word "declared" is expressly introduced; prohibitory as to
setting spring guns, even with notice, except in dwelling-houses by
night. As to the case of Brock v. Copdand, Lord Kenyan proceeded
on the ground that the defendant had a right to keep a dog for the
preservation of his house, and the plaintiff, who was his foreman,
knew where the dog was stationed. The case of the furious bull
is altogether different; for if a man places such an animal where
there is a public footpath, he interferes with the rights of the public.
What would be the determination of the Court if the bull were
placed in a field where there is no footpath, we need not now de-
cide ; but it may be observed, that he must be placed somewhere,
and if kept, not for mischief, but to renew his species; while
the gun in the present, case was placed purely for mischief. The
case of the pit dug on a common has been distinguished, on the
ground that the owner had a right to do what he pleased with his
own land, and the plaintiff could shew no right for the horse to
be there.

Those cases, therefore, do not apply to one, where an instru-
ment is placed solely for a bad purpose. In Dcanc v. Clayton, I
incline to the opinion expressed by my brothers Park and Burrough.
But in Dcanc v. Clayton, the plaintiff", the master of the dog. had a
right to hunt in the wood adjoining that in which the dog was
spiked ; there was no visible boundary between the two woods ; the
manner in which the plaintiff and defendant occupied their respec-
tive properties was evidence of an understanding between them
that the enjoyment should be mutual ; and the dog was impelled
onwards by his natural instinct in pursuit of the game. Looking
at the authorities, therefore, Dcanc v. Clayton is out of the ques-
tion ; and Ilott v. ]VUks is an authority in point. But we want no
authority in a case like the present ; we put it on the principle tliat
it is inhuman to catch a man by means which may maim him or
endanger his life, and, as far as human means can go, it is the object
of English law to uphold humanity, and the sanctions of religion. It
would be, indeed, a subject of regret, if a party were not liable in



386



PALMER v. GORDON



damages, who, instead of giving notice of the employment of a
destructive engine, or removing it, at least, during the day, expressed
a resolution to withhold notice, lest, by affording it, he should fail
to entrap his victim.^

BuRROUGH J. The common understanding of mankind shews,
that notice ought to be given when these means of protection are
resorted to; and it was formerly the practice upon such occasions
to give public notice in market towns. But the present case is of a
worse complexion than those which have preceded it; for if the De-
fendant had proposed merely to protect his property from thieves,
he would have set the spring guns only by night. The Plaintiff was
only a trespasser: if the Defendant had been present, he would not
have been authorised even in taking him into custody, and no man
can do indirectly that which he is forbidden to do directly.

Judgment for the Plaintiff J'



PALMER V. GORDON.
Supreme Judicial Court of Massachusetts, 1899. 173 Mass. 410.

Tort, for personal injuries occasioned by spilling scalding water
on the plaintiff.

At the trial in the Superior Court, before Bishop, J., the evi-
dence tended to show that the plaintiff, a boy fifteen years old, en-
tered the restaurant of the defendant, not for the purpose of pur-
chasing anything himself, but on the invitation of one of two other
boys who accompanied him, and who proposed to stand treat; that,
finding the defendant engaged with customers, the boys passed into
the kitchen attached to the restaurant, and seated themselves in
front of the stove with their feet in or on the edge of the oven;
that having twice been ordered by the defendant to leave the kitchen,

^ The pleadings, the greater part of the arguments, the whole of the con-
curring opinion of Park, J., and part of the concurring opinion of Burrough,
J., are omitted.

'Accord: Hooker v. Miller, 37 Iowa 613 (1873), spring gun set, without
notice, to prevent trespassers stealing owner's grapes ; the plaintiff was a
person entering to steal the grapes; Grant v. Hass, 31 Tex. Cir. App. 688
(1903), the Texas Code allowing the taking of life to prevent, inter alia,
theft at night, an occupant of land setting spring gun to protect his melon
patch takes the risk that the person coming in contact therewith intends
theft and is liable to a trespasser innocent of criminal intent; see also State
V. Barr, 11 Wash. 481 (1895) where one setting a spring gun to protect his
empty cabin, by which an innocent trespasser was killed, was held guilty of
murder in the second degree. Cf., Quigley v. Clough. 173 Mass. 429 (1899),
a landowner held not liable for injuries received through contact with a
barbed wire fence erected to prevent trespassers making a short cut over his
lot. "Here there was nothing but an inert object intended to prevent tres-
passing, which could do no harm unless the trespass itself brought the tres-
passer in contact with it", Holmes. J., p. 430; Worthington v. Wade, 82 Tex.
26 (1891), landowner held not liable for death of a trespasser whose horse
being frightened had run against a barbed wire fence put up to shut off a
path which the public used without owner's consent. See also Kelly v. Ben-
nett. 132 Pa. 218 (1890), plaintiff travelling on highway slipped and putting
out his hand to save himself from falling it was impaled on the sharp points
of an iron railing around defendant's area. It was held he could not recover,
the defendant having "the right to protect his area in that manner." So it was
held in Scheuermann v. Scharfenberg, 163 Ala. 2)2)7 (1909), that one who
placed a spring gun in his shop was not liable to a burglar injured thereby.



PALMER V. GORDON 3^7

and, having disregarded the orders, the defendant went into the
kitchen, and. saying, "1 will show you how 1 get my dog out," drew
a pan of scalding water to and fro across the top of the stove with
a scraping noise, for the purpose of spilling the water on the stove
and of frightening the boys away, and in so doing spilled water
on the stove and thence on the legs of the boys, scalding them, but,
as was admitted by the plaintiff, without intending to scald him.

The jury returned a verdict for the plaintiff ; and the defend-
ant alleged exceptions.

//. H. Nczi'ton, for the defendant.

G. A. Broivn, for the plaintiff.

Holmes, j. This is an action of tort for personal injuries.
We are to take it that the plaintiff, a boy. was a trespasser with
some other boys in the kitchen attached to the defendant's res-
taurant, and that the defendant spilled water upon the stove for
the purpose of frightening the boys away. He did not intend to
scald them, but the water flew from the stove upon the legs of the
boys. The question raised by the exceptions is whether the jury
were warranted in finding the defendant liable.

It will be seen that this case falls between the cases of spring
guns and the like, where the defendant is or may be in the same
position as if he had been personally present and had shot the plain-
tiff, and the cases where, as against trespassers or licensees, rail-
roads are held entitled to run trains in their usual way without spe-
cial precautions. Chcnery v. Fitchbtirg Railroad, i6o Mass. 2ii,
213. In the case at bar the defendant, although not contemplating
or intending actual damage, did an act specifically contemplating
the plaintiff's presence and directed against him. He left the safe
position of a landowner simply pursuing his own convenience and
assuming that no one would break the law and thereby bring him-
self into danger.

Tust as a man may make himself liable to a negligent plaintiff
by a" later negligence, '(Pierce v. Cnnard Steamship Co. 153 Mass.
87, 89.) he may make himself liable to a trespasser by an act that
is done with reference to the trespasser's presence, and that suffi-
ciently clearly threatens the danger which it brings to pass. A
trespasser is not caput hipinum. In the present case the only ele-
ment of doubt was whether the danger to the plaintiff was suflficiently
obvious under the circumstances. That question properly was left

to the jury.

Exceptions overruled.^

^Accord: Magar v. Hammond. 183 N. Y. 387 (1906), game keeper liable
if he fires a Run toward a point where he knows or has reason to_ believe a
trespasser is, but {semhle) not if he is negligent merely (i. e. in not discovering
trespasser) ; Walsh v. Pittsburg Ry. Co.. 221 Pa. 463 (1908), trespassing child
injured by frayed cable which the engineer set in motion while the child was
present — whether the engineer actually saw her and was conscious that his
act exposed her to danger, were questions for the jury. Fell, J., p. 465. Cf.
Buck v. Amorv Co.. 60 N. H. 257 (1897).

So it is often said that a trespasser can only recover for injury caused
by "positive wrongful act." R. R. v. BaUantinc. 84 Fed. 935. (C. C. A. 7th
Circ. 1898'), boy assisting in putting out fire at freight yard injured by explo-
sion of oil car; "wilful or affirmative acts", Gibson v. Leonard. 143 Til. 182



38S HERRICK Z'. WIXOM



HERRICK V. WIXOM.
Supreme Court of Michigan, 1899. 121 Michigan, 384.

Montgomery, J.

This is an action of trespass on the case, brought in the circuit
court for the county of Shiawassee. Defendant was possessed of
and managed a tent show or circus, September 18, 1897, which he
exhibited from place to place, and on the afternoon of this day at
Bancroft. Plaintiff went to the circus grounds on the afternoon of
this day, in company with his cousin. There is testimony to show
that while there he and his cousin were invited by a son of the de-
fendant, who had been selling tickets in the ticket wagon, to enter
the tent with him, the entertainment being in progress. This plain-
tiff did, taking a seat on the lower tier of seats. The testimony on
the part of the defense tended to show that plaintiff was not invited
into the show, and that the son of defendant had no authority to
invite him in. There was also evidence that plaintiff had attended
a similar exhibition given by defendant the spring before. A part
or feature of the entertainment consisted in the ignition and explo-
sion of a giant firecracker attached to a pipe set in an upright posi-
tion in one of the show rings. This was done by one of the clowns.
There is testimony to show that plaintiff sat 30 or 40 feet from the
place where the cracker was exploded, but, when the same was ex-
ploded, a part of the firecracker flew and struck plaintiff in the eye,
putting it out, whereby he lost the sight and use of the eye. For
this injury action was brought against defendant for damages as
a result of defendant's negligence in permitting a dangerous explo-
sive to be used in a dangerous manner, which subjected those pres-
ent to hazard and risk of injury. Upon the trial of the cause a
verdict of no cause of action was rendered, and judgment for the
defendant entered accordingly. Plaintiff brings error. * * *

The circuit judge charged the jury as follows:

"The negligence charged in this case, gentlemen, is that Mr.
Wixom exploded a firecracker, of the dimensions that the plaintiff
claims this firecracker was, in the inside of this tent, and in the pres-
ence of his audience. They claim that was negligence. And that
is the question for you to determine, under the evidence, and under
the rules of law that I have given you and that I shall give you here-
after. Now, you must further find, in order that the plaintiff re-
cover, that the plaintiff was in the tent, where he was injured, by
the invitation of some person having authority to allow him to go
in there. If he was a mere trespasser, who forced his way in, then



(1892) p. 189; or conduct amounting to a "reckless, wilful or wanton dis-
regard of the trespasser's safety," Nashville Ry. Co. v. Priest, 117 Ga. 767
< '9*^.1) P- 771. railroad employe shouted to a child on top of a freight car.
v.'h'ch an engine was approaching, "get off or you will be killed" — she jumped
r.nd was injured, it was held this was at most lack of ordinary care and did
not make the company liable. A railway company, steam or street, is how-
ever liable to child trespasser ejected from a moving train or car, Enright v.
Railroad, 198 Pa. 166 (1901) ; Biddle v. R. R., 112 Pa. 55i (1886) ; Aiken v.
R. R., 180 Mass. 8 (1901), 184 Mass. 269 (1903) ; cf. Bjornquist v. R. R., 185
Mass. 130 (1904).



CAMPBELL Z\ KANSAS CITY, FT. SCOTT & MEMPHIS R. R. CO. 389

the defendant owed him no duty that would enable him to recover
under the declaration and proofs in this case. '■' *

We think this in.struction faulty, in so far as it was intended
to preclude recovery in any event if the plaintiff was found to be
a trespasser. It is true that a trespasser who suffers an injury be-
cause of a dangerous condition of premises is without remedy. But,
where a trespasser is discovered upon the premises by the owner
or occupant, he is not beyond the pale of the law, and any negligence
resulting in injury will render the person guilty of negligence liable
to respond in damages. Beach, Contrib. Neg. § 50; Whart. Xeg.
§ 346; Marble v. Ross, 124 Mass. 44; Houston, etc., R. Co. v. Symp-
kiiis, 54 Tex. 615 (38 Am. Rep. 632) ; Brown v. Lynn, 31 Pa. St.
510 (72 Am. Dec. 768); Needhain v. Railroad Co., 37 Cal. 409;
Daz'ies v. Mann, 10 Mees. & W. 546; i Shear. & R. Neg. § 99. In
this case the negligent act of the defendant's servant was committed
after the audience was made up. The presence of plaintiff was
known, and the danger to him from a negligent act was also known.
The question of whether a dangerous experiment should be at-
tempted in his presence, or whether an experiment should be con-
ducted with due care and regard to his safety, cannot be made to de-
pend upon whether he had forced himself into the tent. Every
instinct of humanity revolts at such a suggestion.

For this error the judgment will be reversed, and a new trial
ordered.

Grant, C. J., Moore and Long, JJ., concurred. Hooker, J.,
did not sit.^



CAMPBELL V. KANSAS CITY, FORT SCOTT & MEMPHIS

RAILROAD CO.

Supreme Court of Kansas, 1895. 55 Kan. 536.

Johnston, J. :^ It is contended that Campbell was seen 500
feet ahead of the engine, and therefore the engineer should have
stopped the train before reaching him. The engineer, however, is not
bound to stop a train whenever he sees a person ahead upon the



^Accord: Hobh's Adm. v. Blanchard Co., 74 N. H. 116 (1906), the
defendants, a lumber company, left sticks of dynamite lying about near their
camp, which the plaintiff, a boy, coming to the camp out of mere curiosity,
not knowing its nature, exploded. It was held that on these facts it was
error to nonsuit the plaintiff. "It was immaterial whether the deceased was
technically a trespasser or a bare licensee," the jury might find "that the
defendant knew of his presence in the vicinity of the camp ; knowing his
presence, as well as that strangers frequented the camp with the tacit
acquiescence of the defendant, it was bound not to actively render his libera-
tion unreasonably dangerous". Leaving dynamite lying about was "not only
a careless act indicating a disregard of human life, but an unnecessary and
unusual act in the reasonable prosecution of lumbering operations." "In this
case the defendant's negligence or breach of duty to the deceased consisted
ill creating upon the land a concealed danger, not justified or required by
the business it was ostensibly carrying on, when it knew of the boy's presence
and of his probable ignorance that the danger existed" Walker, J., pp. 120,
121. The case having come again before the court, Hobbs v. Hobbs, 75 X. H.
73 (1908). it was held that the plaintiff, having failed to show that the de-
fendant knew of his presence on the premises when the dynamite was left
cxpo'.;ed. could not recover.

' Only a portion of the opinion is printed.



390



CAMPBELL V. KANSAS CITY, FT. SCOTT & MEMPHIS R. R. CO.



railroad, but has a right to assume that an adult person apparently
in the possession of his faculties will exercise his senses and step
out of the way of danger before the engine reaches him. The en-
gineer is required to keep a reasonable lookout for trespassers upon
the track, and to exercise such care as the circumstances require to
prevent injury to them. Campbell was undoubtedly seenby_the_£iLi.
gineer several hundred feet away; but he was awake~Sn3moving^
and appeared to be in the full possession of all his senses and faculties
Although there were some piles of ballast along the track, TiecouTd
have stepped aside without difficulty ; and, as there was no apparent
disablitv, the engineer had a right to presume until the last moment
that he' would heed the w^arning wdiich had been given, and leave
the track in time to avoid injury. The engineer gave the usual sig-
nals for the crossing; and we have seen that as the engine approached .,
Campbell danger signals, or what one witness called "screeching
whistles," were repeatedly given.- * * * Where the appearances
indicate that a person upon the track is in such a condition as to
be either insensible of his danger or unable to avoid it, those in
charge of the train must use all available means consistent with the
safety of those on the train to stop. The same rule is applied with
reference to a voung child, who is unable to understand the peril of„
being upon a railroad track.^ * * * Campbell was a man of
mature years, who had the use of his faculties; and. as he was
moving and apparently capable of taking care of himself, the en-
gineer had a right to jpresume until the last moment that he would
leave the track and not be run over.

''Accord- Phila. & Reading R. R. v. Spearen, 47 Pa- 300 (1864),
semhlc; P. R. R. v. Morgan, 82 Pa. 134 (1876) ; R. R. v. Blakely, 59 Ala. 471
(1877) ; R. R. v. McCIaren, 62 Ind. 566 (1878) ; High v. R. R., 112 N. C. 385
(1893) ; R. R. V. Hcrrin, 6 Tex. Civ. App. 718 (1894) ; see, however, aliter,
when the train is going at a prohibited speed. R. R. v. O'Conner, 115 111. 254
(1885) ; R. R. v. Daniel, 89 Ga. 463 (1892). Even at a public crossing a trav-
eller's ordinarily only entitled to timely warning of the approach of the train,
Telfer v. R. R., 30 N. J. L. 188 (1862).

'The youth of trespassers does not cast on a railroad any duty to keep
on the watch for their possible presence on its tracks, Phila. & Reading R.
R. V. Spearen, 47 Pa. 300 (1864) ; Nolan v. R. R., 53 Conn. 461 (1885) ; but
where a trespasser is seen, obviously too young to care for itself, the rail-
road is bound to take steps to stop the train or bring it within control so
that it may be quickly stopped, Galveston R. R. v. Olds, 112 S. W. 787 (Tex
Cir. App. 1908) ; R. R. v. Spearen, supra; R. R. v. Lohges, 6 Ind. App. 288
(1892). So if a child be seen near the track, the engineer should immediately
slacken speed and bring the train under control, R. R. v. Barker, 39 Ark. 491