Francis H. (Francis Hermann) Bohlen.

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laration, — says that the slates and materials were placed on the road
by the licence of the owners and occupiers of the land before the
consent given to the plaintiff to use the said road, that the consent
so given to the defendant was in full force at the time of the acci-
dent, and that the injury complained of was not the result of any
breach of duty on his part : and it has been contended by Mr. Hud-
dleston that the owners of the soil, and consequently also any per-
son having leave and licence from them, may, as against any other
person using the way by the like leave and licence, erect an ob-
struction thereon without incurring any responsibility for injury
resulting therefrom, unless in the case of a holding out any allure-
ment or inducement to such other person to make use of the way.
It seems to -me that the very case from which the learned counsel
seeks to distinguish this, is the case now before us. The proprietors
of the soil held out an allurement whereby the plaintiff was induced
to come upon the place in question: they held out this road to all
persons having occasion to proceed to the asylum as the means of
access thereto. Could they have justified the placing an obstruction-
across the way, whereby an injury was occasioned to one using the
way by their invitation? Clearly they could not. Having, so to
speak, dedicated the way to such of the general public as might
have occasion to use it for that purpose, and having held it out
as a safe and convenient mode of access to the establishment, with-
out any reservation, it was not competent to them to place thereon
any obstruction calculated to render the road unsafe, and likely
to cause injury to those persons to whom they had held it out as
a way along which they might safely go. If that be so, a third per-
son could not acquire the right to do so under thci^Micenceorper-
mission. The case is entirely distinguishable from those which
have been referred to. In those, the plaintiff was in the position of
a wrong-doer, a trespasser: whereas, here, the plaintiff was at the


time he sustained the injury complained of in the course of using
the way upon the invitation of the owners of the soil. We must
take it as the jury have found it, that, though the defendant had the
leave and licence of the owners of the soil to place the slates upon
the road, such, licence was to be exercised with reasonable precau-
tions and a due regard to the safety of all persons using the way.
I doubt whether the finding of the jury might not have been ob-
jected to. 1 incline to think, that, where a general leave and licence
is given to use a road as a means of access to a certain place, any sub-
sequent leave to place an obstruction there would be inoperative, and
therefore 1 think the evidence does not justify the finding upon
the fourth plea. r>ut the jury having coupled it with a finding that
the leave granted to the defendant was to be exercised with a due
regard to the protection of the public, we must presume it to have
been so qualified. I therefore think there is no ground for disturb-
ing the verdict. Then comes the question whether there is anything
to entitle the defendant to have the judgment arrested. The ground
upon which that is sought, is, that the declaration does not shew
that the obstruction complained of was erected without the permis-
sion of the owners of the .soil. I am of opinion that it w^as not
necessary that the declaration should allege that. It was enough for
the plaintiff to aver that there was a road which he was entitled, as
of right, or by the owners' permission, to use, and that the defendant
negligently and improperly placed an obstruction thereon, whereby
the plaintiff sustained an injury. It was altogether unnecessary for
the plaintiff' to go on and negative the fact of permission having
been given to the defendant by the owners of the soil ; for, it was
hot to be presumed that they would have done that which would
have been in fraud of the leave and licence granted to the plantiff.

WiLLES, J.^ I am of the same opinion. In substance the case is
this : — There was a road leading to a certain building, along which
road persons having occasion to go to the building were accustomed
to pass by leave of the owners of the soil, and w^ere likely to pass ;
and the defendant, being engaged in some work upon the adjoining
land, obtained leave to place slates and other materials there, either
absolutely or modified in the way found by the jury, so as not to
endanger persons using the road. Under that leave, the defendant
placed certain slates across the road in such a way as to be likely
to occasion injury to persons using the road. It is not suggested
that the defendant did not know that the road was likely to be used
in the way I have mentioned, or that he gave any notice or warning
to the persons, including the plaintiff, who were accustomed and
likelv to use the road. The question is, whether there is any legal
remedv for a person lawfully using the road, to whom injury results
from the act of a third person in negligently placing an obstruction
upon the road. I should have thought that the bare statement of
the proposition was enough. The defendant had no right to set
a trap for the plaintiff'. One who comes upon another's land by
the owner's permission or invitation has a right to ex pect that the

' A portion of this opinion and the entire opinions of Williams and
Byles, JJ., are omitted.


owner will not dig a pit thereon, or permit another to dig a pit
thereon, so that persons lawfully coming there may receive injury.
That is so obvious that it is needless to dwell upon it. The form
of declaration which 1 should have drawn upon such a state of
facts, would have been something like this, — that there was a cer-
tain road over which the plaintiff and others having occasion to
go to a certain building by licence of the owners were accustomed
and were likely to pass, and that the defendant, knowing that, wrong-
fully and negligently placed certain slates and materials across the
road in such a manner as to be likely to prove dangerous to per-
sons driving along the road, and that the plaintiff, being lawfully
on the road on his way to the building, ran against the obstructio
and was injured.^

(d) Persons Coming upon the Premises for Purposes in
which the Occupier has an Interest.

I. Social Guests.

In the Court of Exchequer, 1856. i Hurl. & Nor. 247.
The declaration stated, that at the time of the committing of
the grievances, &c., the defendant was possessed of an hotel, into
which he had then permitted and invited the plaintiff to come as a
visitor of the defendant, and in which the plaintiff as such visitor
then lawfully was by the permission and invitation of the defend-
ant, and in which hotel there then was a glass door of the defendant,
which it was then necessary for the plaintiff, as such visitor, to
open for the purpose of leaving the hotel, and which the plaintiff,
as such visitor, then by the permission of the defendant and with

^Accord: Thayer v. Jarvis, 44 Wis. 388 (1878), defendant who had
allowed his private alley to be used by adjacent owners placed caustic soda
thereon which injured the horses of a teamster hauHng material_ for a neigh-
bor, the driver being ignorant of the presence of the soda in the alley;
Oliver V. Worcester, 102 Mass. 489 (1869), city, in erecting building for
rental purposes, made and left unlighted an excavation in a path through
the public common over which the public were licensed to pass; Toomey v.
Sanborn, 146 Mass. 28 (1888), city slopman removing garbage injured by
latent defect in stairway created by landlord in effort to make repairs; Ells-
worth V. Metheney, 104 Fed. 119 (C. C A., 6th Circ, 1900), uninsulated wire
left exposed where employes were allowed to congregate during lunch hour.

When there is a mere acquiescence in the passing of the public oyer an
open lot in no definite path, the owner is not liable for digging a ditch in
the use of his own land or for neglect to guard or light it, Habina v. Elec-
tric Co., 150 Mich. 41 (1907). An owner or one acting under his authority
creating a danger upon a permissive path in the enjoyment of his property,
is not liable to a licensee using it at night and injured thereby, where the
owner's use is open and notorious and involves the probable creation of
dangerous conditions, McCann v. Thilemann, 72 N. Y. Supp. 1076 (1901);
nor is there any duty imposed on an owner to warn a licensee by acquies-
cence of dangers created on the property by third persons, Martin v. Bridge
Co., 41 Ind. App. 493 (1908).


his knowledge, and without any warning from him, lawfully opened
for the purpose aforesaid, as a door which was in a proper con-
dition to be opened; nevertheless, by the negligence of the defendant
the said door was then in a dangerous condition, and by reason
thereof, a large piece of glass from the said door fell out of the same,
to and upon the plaintiff, and woundedJiim.^

Demurrer and joinder therein.

Raymond, in support of the demurrer. — The declaration dis-
closes no cause of action. It is not stated that the plaintiff was in
the hotel as a guest, but merely as a visitor ; and there is no allega-
tion that the defendant knew of the dangerous condition of the
door. * * * [Br.vmwkll, B. — If a person invites another into
his house, and the latter can only enter through a particular door,
is it not the duty of the former to take care that the door is in a
secure condition ?] He may not be aware that the door is insecure.

Gray, contra. — The declaration shows a duty on the part of
the defendant, and a breach of that duty. It is immaterial whether
the injury takes place in a private house, or in a shop, or in a stre et ;
the only question is, whether the person who complains was lawfully
there? * * * Here it is alleged that the defendant invited the
plaintiff to come into the hotel as a visiter ; that shows that he was
lawfully there. [Pollock, C. B. — The position, that an actiorTlies
because the plaintiff was lawfully in the house, cannot be supported :
a servant is lawfully in his master's house, and yet if the balusters
fell, whereby he was injured, he could not maintain an action against
the master. If a lady, who is invited to dinner, goes in an expensive
dress, and a servant spills something over her dress, which spoils it,
the master of the house would not be liable. Where a person enters
a house- by invitation the same rule prevails as in the case of a ser-
vant. A visitor would have no right of action for being put in a
damp bed, or near a broken pane of glass, whereby he caught cold.
Alderson, B. — The case of a shop is different, because a shop is
open to the public ; and there is a distinction between persons who
come on business and those who come by invitation.]

Pollock, C. B. — We are all of opinion that the declaration can-
not be supported, and that the defendant is entitled to judgment.
I do not think it necessary to point out the reasons by which I have
come to that conclusion ; because it follows from the decision of
this Court, that the mere relation of master and servant does
not create any implied duty on the part of the master to take more
care of the servant than he may reasonably be expected to do of
himself. That decision has been followed by several cases, and
is now established law, though I believe, the principle was not recog-
nised until recent times. The reason for the rule is, that the servant
undertakes to run all the ordinary' risk of service, including those
arising from the negligence of his fellow servants. The rule applies
to all the members of a domestic establishment, so that the master
is not in general liable to a servant for injury resulting from the
negligence of a fellow servant ; neither can one servant maintain an
action against another for negligence whilst engaged in their common

' The statement of facts is abridged.


employment. The same principle applies to the case of a visitor at
a house : \vhilst he mains there he is in the same position as any
other member of the establishment, so far as regards the n egligence
of the master or his servants, and he must take his chance wi th the

Alderson, B. — I am of the same opinion.

Br.\mwell, B. — I agree with Mr. Gray to this extent, that
where a person is in the house of another, either on business or for
any other purpose, he has a right to expect that the owner of the
house will take reasonable care to protect him from injury; for
instance, that he will not allow a trap-door to be open, through which
the visitor may fall. But in this case my difficulty is to see that the
declaration charges any act of commission. If a person asked an-
other to walk in his garden, in which he had placed spring-
guns or men-traps, and the latter, not being aware of it, was thereby
injured, that would be an act of commission. But if a person asked
a visitor to sleep at his house, and the former omitted to see that the
sheets were properly aired, whereby the visitor caught cold, he could
maintain no action, for there was no act of commission, but simply
an a ct of o rak^ion. This declaration merely alleges that "by and
through the mere carelessness, negligence, default, and improper
conduct of the defendant," the glass fell from the door. That means
a want of care — a default in not doing something. The words are
all negatives, and under these circumstances the action is not main-
tainable. I doubted whether the words "carelessness, negligence,
and improper conduct," &c., might not mean something equivalent
to actual commission, but on the best consideration which I can give
the subject, it appears to me that they do not mean that, but merely
point to a negative. If I misconstrue the declaration, it is the fault
of those who so framed it.

Judgment for the defendant.^

'See contra (semble) Barman v. Spencer, 49 N. E. 9 (Ind., 1898), per
McCabe, J., p. 12. The liability toward an invited social guest is discussed
but left undecided in Plummer v. Dill, 156 Mass. 426 (1892), a woman com-
ing to business office to get reference for a servant, and Hart v. Cole, 156
Mass. 475 (1892), woman going to the wake of a perfect stranger. But a
landlord retaining control of the approaches to offices, or apartments, is
liable to all guests of his tenants who are expressly or impliedly invited to
visit him whether for business or social purposes, Henkel v. Murr, 31 Hun
28 CN. Y., 1883) ; Alperin v. Earle, 55 Hun 211 (N. Y., 1889) ; Barman v.
Spencer, supra; Phillipps v. Library Co., 55 N. J. L. 307 (1893), but not to
those who come exclusively for their own purposes and without express in-
vitation or any presumption of desire on tenant's part to receive them,
Plummer v. Dill, supra; Hart v. Martin, supra; Ganley v. Hall, 168 Mass.
513 (1897), plaintiff going to brother's rooms to try to borrow money.

Where the plaintiff comes on the premises, not on any business, directly
or indirectly, profitable to the occupier but still for the very purpose, other
than one merely social, for which the building is prepared and thrown open
to the pubHc, the occupier is held lial^le in Davis v. Society, 129 Mass. 367
(1880), plaintiff invited to attend a church conference at defendant's church
and Hoive v. Ohmart, 7 Ind. App. 32 (1893), a visitor at a college invited to
attend a lecture. In Stanwood v. Clancey, 106 Maine 72 (1909), it is said
"when an owner of a building fits it up for business uses, he impliedly in-
vites all persons to come there whose coming is naturally incidental to the
busmcss carried on there, and if he leases the building or parts of it to
tenants he impliedly invites all persons to come there in connection with the
business carried on by the tenants. At the same time, if the building is open
and there is nothing to indicate that strangers are not wanted, he impliedly
permits and licenses persons to come there for their own conveniences or to
graufy their curiositv. To those invited he owes the duty (to manage an


2. Business Guests.

Court of Common Pleas. 1866. L. R. i, C. P. 274.

WiLLES, J. — This was an action to recover damages for hurt
sustained by the plaintiff's falhng down a shaft at the defendant's
place of business, through the actionable negligence, as it was al-
leged, of the defendant and his servants.

At the trial before the Lord Chief Justice at the sittings here
after Michaelmas Term, the plaintiff had a verdict for 400/. dam-
ages, subject to leave reserved.^

A rule was obtained by the defendant in last term to enter a
nonsuit, or to arrest the judgment, or for a new trial because of
the verdict being against the evidence.

The rule was argued during the last term, before Erie, C. J.,
Keating and Montague Smith, ]]., and myself, when we took time
.to consider. We are now of opinion that the rule ought to be dis-

It appears that the defendant was a sugar-refiner, at whose place
of business there was a shaft four feet three inches square, and
twenty-nine feet three inches deep, used for moving sugar. The
shaft was necessary, usual, and proper in the way of the defend-
ant's business. Whilst it was in use, it was necessary and proper
that it should be open and un fenced. When it was not in use, it
was sometimes necessary, with reference to ventilation, that it should
be open. It was not necessary that it should, when not in use, be
unfenced ; and it might then without injury to the business have
been fenced by a rail. Whether it was usual to fence similar shafts
when not in use did not distinctly appear; nor is it very material,
because such protection was unquestionably proper, in the sense of
reasonable, with reference to the safety of persons having a right

elevator carefully) but not to those merely licensed;" Savage, J. Plaintiff
to accommodate a friend went to look for the office of one H. He went
into defendant's building to inquire if H. had an office there, (which he had
not). Thinking that the open space in the elevator frame was an office door,
he walked into it, fell into the well and was hurt.

*"In his summing-up, the Lord Chief Justice stated in substance as fol-
lows: The plamtitl has to establish that there was negligence on the part
of the defendant; that the premises of the defendant, to which he was sent
in the course of his business as a gas-fitter, were in a dangerous state; and
that, as between himself and the defendant, there was a want of due and
proper precaution in respect of the hole in the floor. To my mind, there
would not be the least symptom of want of due care as between the de-
fendant and a person [permanently] employed on his premises, because the
sugar-baking business requires a lift on the premises, which must be as well
known to the persons employed there as the top of a staircase in every
dwelling-house. But that which may be no negligence towards men ordi-
narily employed upon the premises, may be negligence towards strangers
lawfully coming upon the premises in the course of their business. And,
after observing upon the facts, he told the jury. that, if thcv found that
there was no negligence on the part of the defendant, or that there was
want of reasonable care on the part of the defendant, but that there was
also want of reasonable care on the part of the plaintiff which materially
contributed to the accident, the plaintiff was not entitled to recover; but
that, if there was want of reasonable care in the defendant, and no wan^
of reasonable care in the plaintiff, then the plaintiff was entitled to a verdict."



to move about upon the floor where the shaft in fact was,
because in its nature it formed a pit-fall there. At the time of the
accident it was not in use, and it was open and unfenced.

The plaintiff was a journeyman gas-fitter in the employ of a
patentee who had supplied the defendant with his patent gas regu-
lator, to be paid for upon the terms that it effected a certain saving :
and, for the purpose of ascertaining whether such a saving had
jeen effected, the plaintiff's employer required to test the action of
(he regulator. He accordingly sent the plaintiff to the defendant's
)lace of business for that purpose ; and, whilst the plaintiff was en-
gaged upon the floor where the shaft was, he (under circumstances
/as to which the evidence was conflicting, but) accidentally, and, as
[the jury found, without any fault or negligence on his part, fell
down the shaft, and was seriously hurt.

It was argued, that, as the defendant had objected to the plain-
tiff's working at the place upon a former occasion, he (the plain-
tiff) could not be considered as having been in the place with the
defendant's leave at the time of the accident: but the evidence did
not establish a peremptory or absolute objection to the plaintiff's
being employed, so as to make the sending of him upon the occasion
of the accident any more against the defendant's will than the send-
ing of any other workman : and the employment, and the implied
authority resulting therefrom to test the apparatus, were not of a
character involving personal preference (dilectus personae), so as to
make it necessary that the patentee should himself attend. It was
^not sng-(ie .sted that the work was not journeyman's work.

It was also argued that the plaintiff' was at best in the condition
of a bare licensee or guest who, it was urged, is only entitled to use
the place as he finds it, and whose complaint may be said to wear
the colour of ingratitude, so long as there is no design to injure him :
see Hounsell v. Smyth, 7 C. B. N. S. 731.

We think this argument fails, because the capacity in which the
plaintiff was there was that of a person on lawful business, in the
course of fulfilling a contract in which both the plaintiff and the
defttWant had an interest, and not upon bare permission. No sound
distinction was suggested between the case of the servant and the
case of the employer, if the latter had thought proper to go in person ;
nor between the case of a person engaged in doing the work for
the defendant pursuant to his employment, and that of a person
testing the work which he had stipulated with the defendant to be
paid for if it stood the test; whereby impliedly the workman was to
be allowed an onstand to apply that test, and a reasonable oppor-
tunity of doing so. Any duty to enable the workman to do the work
in safety, seems equally to exist during the accessory employment of
testing: and any duty to provide for the safety of the master work-
man, seems equally owing to the servant workman whom he may
lawfully send in his place.

It is observable, that, in the case of Southcote v. Stanley, i
H. & N. 247, upon which much reliance was properly placed for the
defendant, Alderson, B., drew the distinction fjctween a bare licensee
and a person coming on business, and Bramwell, B., between active
negligence in respect of unusual danger known to the host and not to


the guest, and a l)are defect of construction or repair, which the host /
was only neghgent in not tinding out or anticipating the consecjuence/
of. '

There is considerable resemblance, though not a strict analogy,
between this class of cases and those founded upon the rule as to vol-
untary loans and gifts, that there is no remedy against the lender or
giver, for damage sustained from the loan or gift, except in case
of unusual danger known to and concealed by the lender or giver:
IMacarthy z'. Younge, 6 II. & N. 329. The case of the carboy of
vitriol [VavTantv. Barnes, 11 C. B. N. S. 553] was one in which this
Court held answerable the bailor of an unusually dangerous chattel,
the quality of which he knew, but did not tell the bailee, who did
not know it, and who, as a proximate consequence of his not know-
ing, and without any fault on his part, suffered damage.

The cases referred to as to the liability for accidents to ser-
vants and persons employed in other capacities in a business or pro-
fession which necessarily and obviously exposes them to danger, as
in Seymour v. Maddox, 16 Q. B. 326, also have their special rea-
sons. The servant or other person so employed is supposed to un-
dertake not only all the ordinary risks of the employment into which
he enters, but also all extraordinary risks wdiich he knows of and

Online LibraryFrancis H. (Francis Hermann) BohlenCases on the law of torts (Volume 1) → online text (page 62 of 124)