Francis H. (Francis Hermann) Bohlen.

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out an inducement or invitation to others to enter on his premises
by preparing a way or path by means of which they can gain access
to his house or store, or pass into or over the land, and in a case
where nothing is shown but a bare license or permission tacitly
given to go upon or through an estate, and the responsibility of
finding a safe and secure passage is thrown on the passenger and not
on the owner. The same distinction is stated in Barnes \. Jl'ard, 9
C B. 392; Hardcastic v. South Yorkshire Railzvay, &c. 4 Hurlst.
& Norm. 67 ; and Binks v. South Yorkshire Raiki'ay, &c. ^2 Law
Journ. (N. S.) Q. B. 26. In the last cited case the language of
Blackburn, J. is peculiarly applicable to the case at bar. He says,
"There might be a case where permission to use land as a path may
amount to such an inducement as to lead the persons using it to
suppose it a highway, and thus induce them to use it as such.'' See
also, for a clear statement of the difference between cases where an
invitation or allurement is held out by the defendant, and those
where nothing appears but a mere license or permission to enter
on premises, Bakh v. Smith, 7 Hurlst. & Norm. 741, and Seott v.
London Docks Co. 11 Law Times, (X. S.) 383.

The facts disclosed at the trial of the case now* before us, care-
fullv weighed and considered, bring it within that class in which
parties have been hel d liable i n^lamages by reason of having hel d
o ut an i nvitation-^ inducemeiit to persons to enter upon an d pass
over__their_£remIses. It cannot in any just view oT~the "evidence
)e said that the defendants were passive only, and gave merely a
tacit license or assent tolhe use oTTtTe place in question as a public
crossing. On the contrary, the place or crossing was situated be-
tween two streets^of the city,, (which are much frequented thorough-
fares.) and was used by great numbers of people who had occasion



enter such part of premises, see Berlin Mill Co. v. Crotcaii, 8S Fed. 860
(C. C. A., 1st Circ, 1898), merely license; contra, Mandcville Mills v. Dale,
supra.

In many cases, while it is said that the duty of care arises from the
invitation, it is held that such an invitation will be implied "where there
is a common interest or mutual advantage, while a license is inferred where
the object is the mere pleasure or benefit of the person using it,'' Campbell.
Negligence, § 33; Simons v. R. R., supra. This would relieve an occupier,
of liability towardb persons who were not expressly invited unless their visit
was directly or indirectly of advantage to him though the premises were
manifestly prepared for their reception; but see Slaughter v. R. R., supra;
Davis V. Congycgation, supra; and Robertson v. R. R., supra.



(S^



426 SWEENY v. OLD COLONY R. R. CO.

to pass from one street to the other, and it was fitted and prepared
by the defendants with a convenient plank rroq^ing^ ^nc h as is usualh
constructed in highways, where they are crossed by the tracks of
a railroad, in order to facilitate the passage of animals and vehicles
over the rails. It had been so maintained by the defendants for
a number of years. These facts would seem to bring the case
within the principle already stated, that the license to use the cross-
ing had been used and enjoyed under such circumstances as to
amount to an inducement, held out by the defendants to persons
having occasion to pass, to believe that it was a highway, and to
use it as such. But the case does not rest on these facts only. The
defendants had not only constructed and fitted the crossing in the
same manner as if it had been a highway, but they had empteyetl
a person to stand there with a flag, and to wariT'persons \Srhu were-
about to pass over the railroad when it was safe forjh cm to attemp t
to cross with their vehicles and animals, without iiiterferenceor"
collision with the engines and cars of the defendants. And^t was
also shown that when the plaintiff started to go over the tracks with
his wagon, it was in obedience to a signal from this agent of the
defendants that there was no obstruction or hindrance todiis^safe
passage over the railroad. These facts well warranted the jury in
finding, as they must have done in rendering a verdict for the plain-
tiff tmder the instructions of the court, that the defendants induced
the plaintiff to cross at the time when he attemgtedtojLo so, and
met with the injury for which he now seeks co mpens ation.

It was suggested that the person employed by the defendants
to stand near the crossing with a flag exceeded his authority in
giving a signal to the plaintiff that it was safe for him to pass over
the crossing just previously to the accident, and that no such act
was within the scope of his employment, which was limited to the
duty of preventing persons from passing at times when it was dan-
gerous to do so. But it seems to us that this is a refinement and
distinction which the facts do not justify. It is stated in the report
that the flagman was stationed at the place in question, charged
among other things with the duty of protecting the public. This
general statement of the object for which the agent Was employed,
taken in connection with the fact that he was stationed at a place
constructed and used as a public way by great numbers of people,
clearly included the duty of indicating to persons when it was safe
for them to pass, as well as when it was prudent or necessary for
them to refrain from passing.

Nor do we think it can be justly said that the flagman in fact
held out no inducement to the plantiff to pass. No express invita-
tion need have been shown. It would have been only necessary for
the plaintiff to prove that the agent did some act to indicate that
there was no risk of accident in attempting to pass over the crossing.
The evidence at the trial was clearly sufficient to show that the agent
of the defendants induced the plaintiff to pass, and that he acted
in so doing within the scope of the authority conferred on him. The
question whether the plaintiff was so induced was distinct ly sub -
mitted to the jury by the court ; nor do we see any TrasofTTor sup-
posing that the instructions on this point were misunTTerstood or mts-



LEAROYD, EXECUTOR t'. GODFREV 42/

applied by the jury. If they lacked fulness, the defendants should
have asked for more explicit instructions. Certainly the evidence
as reported well warranted the finding of the jury on this point.

It was also urged tiiat, if the defentlants were held liable in
this action, they would be made to suffer by reason of the fact that
they had taken precautions to guard against accident at the place in
question, which they w'ere not bound to use. and that the case would
present the singular aspect of holding a party liable for neglect in
the performance of a duty voluntarily assumed, and which was not
imposed by the rules of law. But this is by no means an anomaly.
If a person undertakes to do an act or discharge a duty by which
the conduct of others may properly be regulated and governed, he
is bound to perform it in such manner that those who rightfully are
led to a course of conduct or action on the faith that the act or
duty will be duly and properly performed shall not sufifer loss or
injury by reason of his negligence. The liability in such cases does
not depend on the motives or considerations which induced a party
to take on himself a particular task or duty, but on the question
whether the legal rights of others have been violated by the mode in
which the charge assumed has been performed.

The court were not requested at the trial to withdraw the case
from the jury on the ground that the plaintfT had failed to show
he was in the exercise oif due care at the time the accident happened.
Upon the evidence, as stated in the report, we cannot say, as matter
of law, that the plaintiff did not establish this parr of his case.

Judgment on the verdict.

After the above decision was rendered, the verdict was set
aside, by Chapman, ]., as against the evidence.^

LEAROYD, EXECUTOR, v. GODFREY.

Sttpreme Judicial Court of Massachusetts, 1885. 138 Mass. 315.

Tort for personal injuries occasioned to one Booth, the plain-
tiff's intestate. The defendant was the owner of the premises, on
which were four tenements, rented to dift'erent tenants, the owner
retaining control of the common yard and approaches to the rear
tenements. The plaintiff's intestate, a police officer, having at ten
o'clock at night been called by the occupant of one of the rear tene-
ments to stop a disturbance taking place there, went thereto and hav-
ing arrested the disturber w^as leaving the premises with his prisoner

"Accord: Johnson v. R. R., 125 Mass. 75 (1878), railroad owes no duty
as to the operation of its trains to one. not a passenger, crossing its tracks
at a station, though the public are in the habit of crossing at that point as a
short cut to the station of another road; Chcncry v. R. R., 160 Mass. 211
(1893"), ace, but cf. Corrigan v. Union Sugar Refinery, 98 Mass. 577 C1868) ;
///. Cent. R. R. v. Godfrey, 71 111. 500 (1874^, no liability to persons using
merely permissive crossing, unless wilful or wanton injury is done them or
there is lack of ordinary care after discovery of their peril. The weight of
authority is contra. See Felton v. Aubrey. 74 Fed. 350 (C. C. A.. 6th Circ^
1896"), and cases cited therein, p. 357, and Barry v. R. R. ante, p. 244, and
note thereto.

In Lowery v. Walker. L. R. 1910, 1 K. B. 173. Kennedy, L. J., draws a
distinction between persons invited and tho?e whose presence is only t lUr-
ated because of the owner's disinclination to go to the trouble of prosecut-
ing trespassers or making his premises trespass proof, but see same case in
House of Lords, L. R. 1911, A. C 10.



428 LEAROYD, EXECUTOR V. GODFREY

when in "the dark he fell into an open well situate in the open space
between the two tenements situate in the front of the lot, over which
was the only apparent approach to the rear tenements.

Verdict for plaintiff/

Holmes, J. The plaintiff's intestate went to the tenement referred
to, to stop a disturbance of the peace which was taking place there, as
he had a right to. Gen. Sts. c. 23, § 2. Pub. Sts. c. 34 § 2. He
seems also to have been invited by the occupant, whose son was
making the trouble. He arrested the son, but as the arrest does not
appear to have aft'ected his course in leaving the place, his right to
recover would not be aft'ected if the arrest were unlawful. He came
on the premises lawfully, and could lawfully leave them.

Under the instruction of the court, the jury must have found
that the intestate was using the passageway by the defen dant's invi-
tation. That is to say, that the intestate had a right to understand
~Tcom the appearance of the premises that the_ intgnded_rnode of _
approach to the tenement in question was over the open s_pa££jydi£re
the well was ; and the evidence warranted the finding to that^^gxteut.

Now supposing there had been a wrought avenue, and the acci-
dent had happened within it, as the avenue would have held out
exactly as great an invitation to the public having lawful occasion
to visit the tenement when some one else lived there as if the defend-
ant himself had done so, the defendant would have been liable for
any neglect to take proper precautions to make the avenue reason-
ably safe. Larue v. Farren Hotel Co. 116 Mass. oy. Siveeny v. Old
Colony & Newport Railroad, 10 Allen, 368.

But the principle of the case last supposed does not depend
upon the way being wrought, li the appearance of the premises is
such as to point out a certain open space as the mode of approach,
while it may not be the defendant's duty to take care of the whole
open space as an approach, his duty to keep safe the approach of-
fered, whatever it is, is as great as if it were a wrought avenue.
And altiiough the jury should regard less than the whole space as"
the approach proper, yet they would be at liberty to find, from the
absence of any marks defining and separating the approach proper
from the rest of the space, that an exceptional danger outside the
former and in the latter made the approach itself unreasonably dan-
gerous. See Barnes v. Chicopee, ante, 67, and cases cited ; White v.
France, 2 C. P. D. 308. To put it in another way, the jury had a
right to find that the plaintiff was properly where he was. Gilbert
V. Nagle, 118 Mass. 278.

The defendant argues that the plaintiff was not using due care,
because, coming to an obstacle fifteen inches high, in the dark, and
stepping upon it, he then stepped forward, and so fell into the well.
The jury, who regarded the well as making the passage dangerous,
may have considered that the plaintiff' had a right to assume that
no such danger would be allowed to beset the way. We cannot say, as
matter of law, that they were wrong. S every v. Nickerson, 120



^The facts are restated and a portion of the opinion is omitted.




HOLMES V. DREW 429



Mass. 306, 307. Fox V. Sockctt, lo Allen, 535, 536. Lawless v.
Connecticut River Railroad, 136 Mass. i, 6.

This disposes of all the ([uestions argued before us, and of all
the exceptions which were not waived.

Exceptions overruled.^ -■



HOLMES V. DREW. ^

Supreme Judicial Court of Massachusetts, 1890. 151 Mass. 578.

W. Allen, J.^ The jury might have inferred from the facts
stated that the defendant laid out and paved the sidewalk on her
own land in order that it should be used by the public as the side-
walk of the street, and allowed it to remain apparently part of the
street that was intended to be used by foot passengers. This would
amount to an invitation to the public to enter upon and use as a
public sidewalk the land so prepared, and the plaintiff so using it
would have gone upon the defendant's land by her implied invitation,
and she would owe to him the duty not to expose him to a dangerous
condition of the walk which reasonable care on her part would have
prevented. Siveeny v. Old Colony & Newport Railroad, 10 Allen,
368. Carleton v. Franconia Iron & Steel Co., 99 Mass. 216. Oliver
V. Worcester, 102 Alass. 489. Davis v. Central Congregational So-
ciety, 129 Mass. 367, 371. Murphy v. Boston & Albany Railroad,
133 Mass. 121.

The place was not a way, and the Pub. Sts. c. 52, § 19, do not
apply. The ground of the defendant's liability is not her obligation
to keep a way in repair ; but her obligation to use due care that her
land should be reasonably safe for the use which she invited the
plaintiff to make of it. Whether she invited the plaintiff to cross her



^ A police officer or constable, entering premises in the course of his
duty and right as such, is lawfully upon the premises and entitled to the
protection of such obligations as the owners owe to such a class. Parker
V. Barnard, 135 Mass. 116 (1883), a policeman entering warehouse in
course of duty held within the protection of a statute requiring the fenc-
ing, etc., of elevator shafts ; aider, where the officer has no authority to
enter as such, as where a constable for the purpose of executing civil pro-
cess enters a house which he mistakenly believes is the residence of the per-
son named in the writ. Blatt v. McBarron. 161 Mass. 21 (1894).

There is however no duty on a land owner to make his premises safe
for the exceptional visits of officers to parts of his premises not normally
meant for use by visitors, though their purpose is proper and their intru-
sion lawful: Greenville v. Pitts, 107 S. W. 50 (Tex., 1908^), policeman going
on roof to detect crime in adjoining house ; JVoods v. Miller, 30 N. Y. App.
Div. 232 (1898), fireman fighting fire falls from unfenced party wall; Gib-
son v. Leonard, 143 111. 182 (1892), fireman falling into unguarded elevator
shaft; Bechler v. Daniels, 18 R. I.. 563 (1894") ; Woods v. Lloyd, 16 Atl. 43
fPa.. t888\ policeman in pursuit of prisoner falls from street onto unfenced
lot which by change of grade of street has been left thirty feet below the
street level; Casey v. Adams, 234 111. 350 (igoS") ; Kohn v. Lovett, 44 Ga.
251 (1870, private citizen coming on defendant's premises to aid in ex-
tinguishing fire thereon.

This applit-s also to licensees of the owners, who create by their author-
ity dangerous conditions on the premises. Greenville v. Pitts, supra.

' The facts are omitted.



430



CORBY V. HILL



land on a paved walk, whether the pavement was in such a condition
as to render walking over it dangerous, whether it was in that con-
dition through the negligence of the defendant, and whether the
plaintiff was hurt in consequence while in the exercise of due care,
were questions proper to be submitted to the jury.

Exceptions sustained.^



KxovvLTOx, J., in Phimmcr v. Dill, 156 Mass. 426 (1892),
p. 430: There is a class of cases to w^hich Szveeny v.
Old Colony & Newport Railroad, 10 Allen, 368, and Holmes v.
Drczc, 151 Mass. 578, belong, which stand on a ground peculiar to
themselves. They are w'here the defendant by his conduct has in-
duced the public to use a way in the belief that it is a street or
public way wdiich all have a right to use, and where they suppose
thev will be safe. The inducement, or implied invitation, in these
cases, is not to come to a place of business fitted up by the defendant
for traffic, to wdiich those only are invited who will come to do bus-
iness W'ith the occupant, nor is it to come by permission, or favor,
or license, but it is to come as one of the public and enjoy a public
right, in the enjoyment of which one may expect to be protected.
The liability in such a case should be co-extensive with the induce-
ment or implied invitation.

CORBY V. HILL.

In the Common Pleas, 1858. 4 Common Bench, N. S. 556.

This was an action against the defendant for negligently leaving
certain slates upon a certain road, whereby the plaintiff's horse was
injured.

'Accord: Rachmel v. Clark, 205 Pa. 314 (1903), per Mestrezat, J., p. 317;
Scars V. Merrick, 175 Mass. 25 (1899) ; Crogan v. Schicle, 53 Conn. 186
(1885); Kelly V. R. R., 28 Minn. 98 (1881) ; so in Marsh v. Brewing Co.,
92 Minn. 182 (1904), one owning a building, standing a few feet back from
the street, is bound to keep in repair a sidewalk built on his own land con-
necting it with the street.

As to liability of one making a private road on his own land opening
from and paved and curbed like a public highway, see Stevens v. Nichols,
155 Mass. 472 (1892) ; Moffatt v. Kenny, 174 Mass. 311 (1899) ; and D'Amico
V. Boston, 176 Mass. 599 (1900).

In Beck V. Carter, 68 N. Y. 283 (1877), Lepnick v. Caddis, 72 Miss. 200
(1894) and Graves v. Thomas, 95 Ind. 361 (1883) it was held that where
the public had been permitted to use a part of the defendant's premises as
a part of the public highway, he was bound to fence a dangerous excava-
tion therein or adjacent thereto, and this though he had done nothing to
give to the path any appearance of being part of the highway, but in each
case the excavation was a new and hidden danger, see Oliver v. Worcester,
:o2 Mass. 489 (1869) and Corby v. Hill, 4 C. B. N. S. 5S6 (1858). .

In Bart hold v. Phila., 154 Pa. 109 (1893), and Glase v. Phila., 169 Pa.
488 (1895), it is held that a city laying out land as a park and inviting the
public to resort thereto, owes a similar duty to those frequenting it ; see also,
Fox V. Phila., 208 Pa. 127 (1904); hut the weight of authority is contra.
Bisbing v. Asbury Park, 80 X. J. L. 416 (1910), for the reason that in main-
taining parks the city is acting in its public capacity. Cnrran v. Boston, 151
Mass. 505 (1890); MoS^tf v. Ashcville, 103 N. Car.'237 (1889). aiitcr. when
the city derives a revenue from the building of a park or when a public
park is made dangerous bv work done on revenue producing buildings,
Oliver v. Worcester, 102 Mass. 489 (1869),



CORBY V. HILL 43 1

The declaration stated, that, before and at the time when. &c.,
the plaintiff was lawfully possessed of a certain carriage, and of a
certain horse drawing the said carriage, which said horse and car-
riage were under the government and direction of a servant
of the plaintiff, and which said horse and carriage were then, with
the consent of the owners and occupiers of the land and road and
carriage line thereinafter mentioned, during the night-time, under
.such care and government as aforesaid, lawfully in and lawfully
being driven along certain land and a certain road or carriage line,
part of and crossing the said land then belonging to and occupied by
certain persons other than the plaintiff and the defendant, and lead-
ing to a certain public building known as the Han well Lunatic
Asylum, for the purpose of proceeding to the said building; that the
defendant then negligently, carelessly, and improperly kept and con-
tinued upon and across the said road or carriage line, part of the said
land, a stack of slates, and divers other things and materials, with-
out placing or keeping any light or signal near them, or adopting any
means whatever to show that the said slates and other materials were
upon or across tlie said land, road, or carriage line ; by reason where-
of it was thew impossible for the servant of the plaintiff to see or
avoid the said slates, materials, or other things ; and that, by reason
thereof, the said horse drawing the said carriage, while being driven
by the said servant as aforesaid, ran into, upon, and against the
said stack of slates or other materials and things, and was greatly
bruised, wounded, and injured: special damage.

The fourth plea stated that the defendant had law^fuUy placed,
kept, and continued the said slates and other things and materials
across the said land and road or carriage line by the license of the
owners and occupiers of the said land, road, or carriage line, before
the consent of the owners and occupiers of the said land, road,
or carriage line as in the declaration alleged ; and that the said con-
sent so given to the defendant was in full force at the time when,
&c. ; and that the alleged damage was not sustained by any breach
of duty of the defendant. Issue thereon.

The cause was tried before Byles, J., at the sittings in London
after the last term. The facts which appeared in evidence w^ere as
follows : — The carriage-road or way in question was a private road
leading from the turnpike-road to the Hanw-ell Lunatic Asyluni and
to the residence of the superintendent. Dr. Saunders. The defend-
ant, a builder, was employed to do certain work at the asylum, and,
with the consent of the owners of the land, stacked certain slates
and other materials upon a portion of the road, without taking the
precaution of placing a light near them at night; in consequence of
w^hich, the plaintiff's servant, who w^as driving a horse and carriage
along the private road to the residence of Dr. Saunders, not seeing
the slates, drove against them, and seriously injured the horse.

In answer to questions put to them by the learned judge, the
jury found that the defendant had the consent of the owners of the
property for placing the slates and materials where he placed them,
but upon the usual terms of properly providing for the safety of the
public, or of such of the public as had permission to use the way :



432 CORBY V. HILL

that there was negligence in leaving the stack without a proper ligh t;
and that that negligence was chargeable upon the defendant, ixucoa-
junction with the owners of the soil.

It was insisted, on the part of the defendant, that the fourth
plea was an answer to the action.

The learned judge directed a verdict to be entered for the plain-
tiff, reserving leave to the defendant to move to enter a verdict for
him upon the fourth plea, if the court should be of opinion that the
action would not lie under the circumstances.

CocKBURN, C. J. I am of opinion that there should be no rule
in this case. This action is brought by the plaintiff on the ground
that whereas there was a road leading from the main or turnpike-
road to the Hanwell Lunatic Asylum and to the residence of Dr.
Saunders adjoining thereto, and the plaintiff, having lawful occa-
sion to be on the land, was on it by the leave and licence of the
owners thereof, the defendant negligently obstructed the way by
placing thereon certain slates and other materials without giving
notice or warning of the obstruction by light or other signal, and
that, by reason thereof, the plaintiff's horse was driven against the
obstruction, and injured. To this declaration the .defendant, by
his fourth plea, — not denying the leave and license stated in the dec-