Francis H. (Francis Hermann) Bohlen.

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upon principle, but contravene one of the old and well-established
rules of the law ; and we therefore decline to recognize them as
authority, preferring to adhere to the better doctrine of the other
cases cited. The defendant owed no duty to these children, who
were trespassers.

Counsel invoke a further rule, or alleged rule, viz., that the
plaintifif went into a place of danger lawfully to rescue her sister,
and therefore was rightfully there and entitled to protection. The
defendant had a right to rely upon his right to privacy, and to believe
that his premises would only be invaded by those whom he should
choose to invite and warn against the dangers of the place. Was he,
then, bound to suppose that somebody might trespass, and to have
some one on hand to warn and protect some possible rescuer of an
imaginary trespasser? We think not.

The question discussed disposes of the case, and other points
need not be alluded to.

The judgment is affirmed.®

Long and Grant, JJ., concurred with Hooker. J.

Montgomery, C. J. (dissciiti)ig). There- is a limitation upon
the right which a man has to do what he will with his own. I think
a very proper statement of that limitation is that he shall not so use
his own property as to be likely to work injury to another. My
Brother Hooker seems to be of the opinion that, even though the

*The authority of R. R. v. Stout has been repudiated in the following
**turn-table" cases in addition to those cited in the principal case : Tlwiiit>-
son V. R. R., 218 Pa. 444 (1907); Turess v. R. R., <31 N. J. L. 314
(1898) ; Paolino v. McKcndall, 24 R. I. 432 (1902). scv.ble: Railroad Co. v.
Harvev, 77 Oh. S. 235 (1907) ; Bottum's Admr. v. Hazvks, 84 Vt. 370 (1911),
scmble: WaWcr's Adm. v. R. R., 105 Va. 226 (1906) : Utherhtohlen v. Bogg's
Run Co., SO W. Va. 457 (1901), semblc: Conrad v. B. & O. R. R., 61 S. E.
44 (W. Va., 1908). See also Bates v. R. R., 90 Tenn. Z6 (1890), no duty to
so fasten a turn-table that boys cannot unfasten and put it in motion. The
duty was only "to have a fastening adapted to hold the turn-table in place."

In U'ilmot v. McPaddcu, 79 Conn. 367 (1909^. it was held that an owner
of a building in the cour?e of demolition, is not liable to a child who use-
the premises as a playground.



412 RYAN V. TOWAR

use made of property by its owner is likely to result in injury to
young children, by attracting them to a dangerous use of the prop-
erty, yet, if the property be located wholly upon one's own land, so
that the child must become a trespasser, in the technical sense, before
he can receive injury from the property, the owner may leave it
exposed, and will not be liable.

In Poiccrs v. Harlozc, 53 ]\Iich. 507 (19 N. W. 257, 51 Am.
Rep. 154), it was said by Mr. Justice Cooley that:

"Children, wherever they go, must be expected to act upon
childish instincts and impulses ; and others who are chargeable with
a duty of care and caution towards them must calculate upon this,
and take precautions accordingly. If they leave exposed to the
observation of children anything which would be tempting to them,
and which they, in their immature judgment, might naturally sup-
pose they were at liberty to handle or play with, they should expect
that liberty to be taken;" citing Railroad Co. v. Stout, 17 Wall. 657,
and other cases.

This case has been since cited by this court as an authority that
where injury results from leaving a dangerous substance exposed,
or leaving a pitfall for others, or leaving dangerous machinery in a
position where children, acting upon childish instincts, have at-
tempted its use to their injury, the owner is liable. See Keating v.
Railroad Co., 97 Mich. 154 (56 N. W. 346, T,y Am. St. Rep. 328).

It is true that neither in Pozvers v. Harlozv nor Keating v. Rail-
road Co. were the facts analogous to those in the present case, and
for this reason the cases may be distinguished. I refer to them as
showing the expressions of the court upon this subject. Indeed, we
are not left in doubt as to what was intended by the opinion in
Poivers V. Harloiv. Judge Cooley, in his work on Torts (2d Ed.,
P- 356, '''303), under the head of "Implied Licenses," says:

"In the case of young children and other persons not fully sui
juris, an implied license might sometimes arise when it would not in
behalf of others. Thus, leaving a tempting thing for children to
play with exposed, where they would be likely to gather for that
purpose, may be equivalent to an invitation to them to make use of
it; and perhaps if one were to throw away upon his premises, near
the common way, things tempting to children, the same implication
should arise."

Similar expressions have been indulged in by other eminent
WTiters. In Bish. Noncont. Law, § 854, it is stated :

"A child too young to be controlled by reason, therefore not im-
properly led by its instincts, receives from the law the protection
which its special nature requires. For example, a man who leaves
on his own ground, open to the highway, or upon or beside any
public place, a dangerous machine, likely to attract children, will be
liable to one injured by playing with it, if he neglected precautions
against such an accident. On this principle, railroads are held re-
sponsible, under proper circumstances, for injuries to young children
playing with their turntables."

In I Thomp. Neg. fist Ed.) p. 305, it is said:

"It would be a barbarous rule of law that would make the
owner of land liable for setting a trap thereon, baited with stinking



RYAN V. TOWAR 4I3

meat, so tliat his neighbor's dog, attracted by his natural instincts,
might run into it and Ijc killed, and which would exempt him from
liability for the consequences of leaving exposed and unguarded on
his land a dangerous machine, so that his neighbor's child, attracted
to it and tempted to intermeddle with it by instincts e(|ually strong,
might thereby be killed or maimed for life.'' Such is not the law."

See, also, Whart. Xeg. § 860.

It becomes of some interest to inquire to what extent this
doctrine has been adopted by the courts.** * * *

It is said that Lynch v. Niirdin, i Adol. & E. (N. S.; 29, has
been disapproved by later English cases, and the case of Mangan v.
Attcrtoii, L. R. I Exch. 239, is cited. But the latter case has itself
been disapproved by Chief Justice Cockburn in Clark v. Chambers,
3 0. 1>. Div. 327, in which case it was said :

"It appears to us that a man who leaves in a public place, along
which persons, and, amongst them, children, have to pass, a dan-



' See this argument elaborated in Edgington v. R. R., supra, note 5.

* He then cites the following cases applying R. R. v. Stout, where an
infant is injured while playing with an insufficiently secured turn-table,
Kcffe V. R. R., 21 Minn. 207 (1875) ; A. & N. R. R. v. Bailey, 11 Xeb. 332
(1881); Barrett v. R. R., 91 Cal. 296 (1891); Kan. Cent. R. R. v. Fitcsiin-
mons, 22 Kan. 686 (1879) ; Nagel v. R. R., 75 Mo. 653 (1882) ; Bridger v.
R. R., 25 S. C. 24 (1885) ; Ferguson v. R. R., yj Ga. 102 (1886) ; Ilii'aco Co.
V. Hcdrich. i Wash. 446 (1890) : accord, also, Ala. Ct. So. R. R. v. Crocker,
131 Ala. 584 (1901). Lewis v. R. R., 84 N. E. 23 (1908, Ind. App.) :
Edgington v. R. R., 116 Iowa, 410 (1902), and Brown v. Salt Lake City, 2,2,
l"tah 222 (1907), not cited..

He also cites the following cases of attractive dangers other than turn-
tables, Pekin v. McMahon, supra, note 2; Schmidt v. Distilling Co., 90 Mo.
284 (1866) — but see Overholt v. Vieth, supra, note 4 — unguarded ponds,
ace. Brinkley Co. v. Cooper, supra, note 4; Harriman v. R. R., 45 Ohio St. 11
(1887), torpedo left on track, explained and approved, however, in R. R. v.
Harvey, supra, note 5, because the plaintiff was, at least, a permissive li-
censee; and Whirley v. IVhiteman, i Head. 610 (Tenn., 1858), and Union
Pac. Ry. Co. v. McDonald, 152 U. S. 262 (1893), where, in the first case,
a dangerous machine and, in the second, a concealed pit of burning coal was
maintained close to a highway or permissive path, see Pozi'crs v. Harlon',
S3 Mich. 507 (1884), not cited, and Cobb, J., in Ether edge v. R. R., 122 Ga.
853 (1905), P- 855, "It may be that an owner may be bound to anticipate
that, a young child v-JH stray a few feet from the path."

In Cooke v. Midland Ct. I'Vestcrn Ry. of Ireland, L. R. (1909) A. C.
229, the House of Lords, reversing the Irish Court of Appeals, 2 I.
R. (1908), 242, held in accordance with the doctrine of Stout v. R. R.,
that a railway was liable to a little boy of four who, having with
some ohlor boys entered their premises through a gap in the hedge, was
injured w^hile being given a ride by his companions on the Company's un-
fastened turn-table. XotwithstantHng a notice forbidding anyone to tres-
pass children had, to the defendant's knowledge, been in the habit of enter-
ing the premises and playing with the turn-table : in fact there was a clearly
defined path leading from the gap to it. Lord AlacNaghten saying that "it
could not make very much difference whether the place was dedicated to
the use of the public, or left open by a careless owner to tlie invasion of
children who made it their playground. ***!(■ did nQj- seem unreason-
able to hold that if persons allowed their property to be open to all comers —
infants as well as children of maturer age — and placed upon it a machine
attractive to children, and dangerous as a plaything, they might be responsi-
ble in damages to those who resorted to it with their tacit permission, and
who were unable in consequence of their tender age to take care of them-
selves."



414 FITZPATRICK Z'. CUMBERLAND GLASS MFG. CO.

geroiis machine, which ma}' be fatal to any one who touches it,
without any precaution against mischief, is not only guilty of negli-
gence, but of negligence of a very reprehensible character; and not
the less so because the imprudent and unauthorized act of anothei
may be necessary to realize the mischief to which the unlawful act
or negligence of the defendant has given occasion." * * *

It will be seen that the great weight of authority in this country
sustains the rule laid down in Railroad Co. v. Stout. Its authority
has been recognized by our own decisions, although in cases where
a ruling upon the precise point was not called for. I do not share
the apprehension of my Brother Hooker that a man would not be
safe to leave agricultural implements on his farm if this rule should
obtain. Undoubtedly there must be something about the premises
to entice a child, and, unless there is something calculated to allure
a child of tender years, and to appeal to his childish instincts, no
duty of the owner is violated. Nor do I understand that the ques-
tion of negligence or of no negligence is to be decided by ascertaining
whether a farmer rriay or may not be guilty of the act. You may
call the doctrine of these cases the result of evolution of the law, or
what you please. It is a humane doctrine, and the principle cannot
be better stated than in the extract from Thompson on Negligence
above quoted. I do not feel justified in ignoring the overwhelming
weight of authority which makes for this rule, as well as the ex-
pressions of our own court. I dissent from the views expressed by
Mr. Justice Hooker.



(c) Licensees — Persons Coming Upon the Premises for their

O^wn Purposes and Benefit.

I. By the Occupier's Express or Tacit Permission.



FITZPATRICK v. CUMBERLAND GLASS MANUFACTUR-
ING CO.

Supreme Court of New Jersey, 1898. 61 A'. /. L. 378.

GuMMERE, J. This is an action brought to recover damages for
personal injuries, received by the plaintiff at the defendant com-
pany's glass works under the following circumstances: The plain-
tiff's father was an employe of the defendant company, and plaintiff"
(who was a boy twelve years of age) was accustomed to carry his
father's dinner to him at the company's works. The evidence just-
fies the conclusion that this was done not only with the knowl edg e
of, but by the permission of the company.

On the day upon which the plaintiff received his injuries, he
carried his father's dinner to the works, as usual, and, as he passed
through the main gateway, one of the gates, which had been allo^y£2I
by the company to get out of repair, fell upon him. crushing his leg^_^

These facts having been proved by the plaintiff' and not having
been controverted by the defendant company, a verdict in his favor
was rendered by the jury.

The chief quest-ion presented by this rule is whether the defend-



FITZPATRICK Z'. CUMUEKLAND CLASS MFG. CO. 4T5

ant. at the time of the injury, owed the plaintiff any duty with regard
to keei)ing the entrance U) its works safe lor his ingress and egre>s.
If it did, the jury properly found in favor of the plaintiff, hut if it
did not the verdict must he set aside, for. unless the plaintiff's in-
juries were the result of the neglect of duty nn the part of the de-
fendant, which it owed to him, no legal responsihility rests upon the
defendant to compensate him for those injuries.

The question of the liahility of the owner of land for injuries
received hy a person entering thereon, by reason of the unsafe con-
dition of tile premises, came before the Court of Errors and Appeals
for determination in the late case of Phillips v. Library Company,
26 Vrooin 307. Mr. Justice Depue, who delivered the opinion of
the court, after considering and discussing the cases on the subject,
declares the rule to be this : "That the owner or occupier of lands
who, ^3' invitation, express or implied, induces persons to come upon
the premises for any purpose, is under a duty to exercise ordinary
care to render the premises reasonably safe for such purpose, or at
least to abstain from any act that will make the entry upon or use
of the premises dangerous," but that "mere permission to pass over
dangerous lands, or 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 wdl fully injurious."

The same rule had previously been enunciated by this court in
the case of Vanderbeck v. Hendry, 5 J'room 467; and Chief Justice
Beasley, in the case of Mattheii's v. Bensel, 22 Vroom 30, declares
that there is no legal principle that imposes upon the owner of prop-
erty, with respect to a mere licensee, the duty of keeping it in a safe
condition.

Applying the rule established by these cases to the case in hand,
it will at once be perceived that the defendant company was under
no obligation to keep its premises safe for the use of the plaintiff.
He was not there by the invitation of the company, express or im-
plied. He was there about a matter in which the company had no
concern, i. e.. the bringing of his father's dinner, and was saved from
being a mere trespasser only by the fact that the company permitted
him to come upon its premises for that purpose. He was a mere
licensee.

His presence on the company's land being merely permissive,
and not by invitation, the only duty which the company owed him
was to abstain from acts wilfully injurious. That they failed in
the performance of any such duty is not pretended in this case.

The rule to show cause should be made absolute, and a new trial
directed.^



'Accord: Batchclor v. Fortcscuc, L. R. 11. Q. B. D. 474 (1883). one
visiting factory out of curiosity injured by defect in machine which he was
watching at work; Sul!i7'aii v. Jl'atcrs. 14 Ir. C. L. 460 (i864"). hole in floor
of loft in which laborer was allowed to sleep: Kiiighf v. Abcit, 6 Pa. 472
(1847). cattle having right to run at large fell into unguarded pit on un-
fenced land; Blackmore v. Toronto Ry. Co., 38 U. C. Q. B. 172 (1876). p.
217, newsboy injured by reason of defective platform of car which he en-
tered in order to sell papers; ]'andcrhcck v. Hendry, 34 N. J. L. 467 (1871),



4l6 GALLAGHER V. HUMPHREY



GALLAGHER v. HUMPHREY.
Court of Queen's Bench, 1862. 6 Laic Times, N. S. 684.

Declaration. — That the deft, was possessed of a crane fixed
upon the New Hibernia-wharf, in a certain passage called Mon-
tague-close, Southwark, along which passage the pit. and others were
permitted to pass, repass and use the same as a way to certain
wharves; that the crane was used by the deft, and his servants to
raise and lower goods over the passage ; that the pit. was, with the
permission of the proprietors of the passage, lawfully passing along
the said passage to the said wharves, yet the deft., by himself and
his servants, so negligently, &c. managed, directed and conducted
themselves, that by and through such neglect, &c., a part of the
said crane broke whilst the deft., by his servants, was using the
same, and certain goods fell upon the pit. whilst he was passing
along, &c. and broke both his legs, &c.

Pleas: — i. Not guilty. 2. That the pit. and others were not
permitted by the proprietors of the said passage to pass, repass and
use the said passage as a way from a highway to certain wharves
as in the declaration charged. 3. That the pit. was not. with the
permission of the proprietors of the said passage, lawfully passing
along the said passage from the said highway to the said wharves,
as in the declaration alleged.

Issue on the said pleas.

At the trial before Blackburn, J., at the Croydon summer assizes
1861, it was proved that pit., the son of a labourer employed in the
erection of West Kent-wharf, under a contractor for the deft.'s
father, had on the day when the accident happened taken his father's
dinner, according to his usual custom, to West Kent-wharf, and on
his return was obliged to pass under a crane erected on the deft.'s
(Hibernia) wharf, and there employed in lowering barrels of sugar.
As he was passing the chain broke, and I2cwt. of sugar fell upon
him. inflicting the injuries complained of. The breakage of the
chain was caused by negligence in the mode of applying the breaks,
for, after the sugar had been attached, the chain of the crane was
allowed to run, and then the man suddenly put on the break and
the jerk caused the weight to rise and fall, and the chain to break.
Montague-close is approached by steps from London-bridge, the
gate to which was usually opened very early in the morning, and
numbers of persons, to the knowledge of the deft., used to pass
along the passage, and no objection was made to persons using the
wav if on legitimate business. The judge left the following

lumber carelessly piled near path through lumber yard used by plaintiff as
"short cut." Mathews v. Bensel, 51 N. J. L. 30 (1888), unfenced machinery;
Larmore v. Crown Point Iron Co., 101 N. Y. 391 (1886), plaintiff seekmg
work injured by machine which an inspection would have shown to be de-
fective; Schiffer v. Sauer Co., 238 Pa. 550 (1913), similar facts; Rcardon v.
Thompson, 149 Mass. 267 (1889), hole on premises customarily used r,y
neighbors as a "short cut," concealed only by darkness of night ; Gibson &
Co. v. Sziepienski, 2>7 111. App. 601 (1891), facts identical with those of prin-
cipal case; South Bend Iron Co. v. Larger, 11 Ind. App. 367 (1894) ; Monroe
V. Atlantic Coast Line, 151 N. Car. 374 (1909), unguarded pit near path
which plaintiff was permitted to use solely for his own purposes.



GALLAGIIF.R V. II UM I'll K1-,V 4I7

questions to the jury: — ist. Was the accident caused by the
neghgence of the deft., or was it a pure accident, over which
no one could have any control? 2nd. Could the boy by reasonable
care have avoided the accident? 3rd. Were the pit. and others
permitted to go up ^lontague-close by the owners? ..th. Did the
deft, on the evidence as disclosed tacitly give permission to the pit. to
pass that way? 5th. Was the boy going to the wharf for a legiti-
mate purpose? The jury having answered all the questions in
favour of the pit. a verdict was entered for him, with leave for
the deft, to move to set it aside and enter a verdict on the second
and third issues. The damages were assessed at 100/.

A rule nisi having been obtained calling on the pit. to show cause
why the verdict should not be entered for the deft, on the second
and third issues.

Slice, Serjt. (Grady with him) showed cause. — On the form of
the rule as obtained, the pit. is clearly entitled to succeed, as there
was evidence that the deft, did by his acts tacitly give permission to
the boy to pass along the close for a lawful purpose, and the jury
have so found. But the pit. is also entitled to succeed on the broader
ground. In Corby v. Hill, 4 C. B. N. S. 556, it was held that the
deft, was liable for the negligence of his servant in placing materials
in a dangerous position, and without notice, on a private road along
which persons were accustomed to pass by leave of the owners; and
in Soutcott v. Stanley, 25 L. J. 339, Ex., a visitor to a person's house
was held entitled to recover for injuries caused by opening a glass
door which was insecure, and which it was necessary for him to
open. (He was then stopped by the Court.)

Petersdorff, Serjt. (Bridge with him) in support of the rule. —
Montague-close was the deft.'s private property, and no one had
any right to be there without his express or implied permission.
The lowering heavy goods from the warehouses by cranes is a mani-
festly dangerous busness, and persons using the way took upon them-
selves whatever risks might be incidental to that business. In Hounsel
V. Smyth, 7 C. B., N.. S., 743, where the deft, was held not to be
liable for leaving a quarry un fenced on waste land, across which the
public were allowed to pass, \\'illiams, J. said : "No right is averred,
but merely that the owners allowed persons, for diversion or busi-
ness, to go across the waste w^ithout complaint ; that is, that they
were not so churlish as to interfere with any one who went across.
But a person so using the waste has no right to complain of any ex-
cavation he may find there ; he must accept the permission w^th its
concomitant conditions, and it may be its perils." [Blackburn, J.
— Have you any authority that persons so using the way take upon
themselves the negligence of the servants about the place?] In
Boh'h v. Smith, 31 L. J- 201, Ex., where workmen cmp'.oyed in a
dock}-ard were permitted to use a place as a way, on which revolving
machinery had been erected, it w'as held that the right so to use the
place was only the right not to be treated as a trespasser, and that
there was no obligation to fence the machinery, and no liability for
insufficiently fencing it. [Cockburx, C. J. — There was the ordinary-
state of things in that case, and no superadded negligence.]



4l8 GALLAGHER Z'. HUMPHREY

CocKBURN, C. J. — I doubt whether on the pleadings and this
rule it is competent to enter into the question of negligence, and
whether the whole matter does not turn upon the question whether
permission was or was not given to the pit. to pass along the way.
But I should be sorry to decide this case upon that narrow ground.
I quite agree that a person who merely gives permission to pass and
repass along his close is not bound to do more than allow the enjoy-
ment of such permissive right under the circumstances in which the
way exists ; that he is not bound, for instance, if the way passes along
the side of a dangerous ditch or along the edge of a precipice, to
fence ofif the ditch or precipice. The grantee must use the permission
as the thing exists. It is a different question, however, where neg-
ligence on the part of the person granting the permission is super-
added. It cannot be that, having granted permission to use a way
subject to existing dangers, he is to be allowed to do any further
act to endanger the safety of the person using the way. The pit.
took the permission to use the way subject to a certain amount of
risk and danger, but the case assumes a different aspect when the
negligence of the deft. — for the negligence of his servants is his — is
added to that risk and danger. The way in question was a private
one leading to dift'erent wharv^es. On part of the way a wharf was
being constructed or repaired, and the plt.'s father was employed
upon that work. It was the father's habit not to go home to his
meals, and the boy used to take them to him at the wharf, and on
this occasion was passing along carrying his father's dinner. The
pit. was therefore passing along on a perfectly legitimate purpose,
and the evidence is that the deft, permitted the way to be used by
persons havng legitimate business upon the premises. That being
so, the deft, places himself by such permission under the obligation