Francis H. (Francis Hermann) Bohlen.

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thinks proper to incur, including those caused by the misconduct of
his fellow-servants, not however including those which can be traced
to mere breach of duty on the part of the master. In the case of a
statutory duty to fence, even the knowledge and reluctant submission
of the servant who has sustained an injury, are held to be only
elements in determining whether there has been contributory negli-
gence: how far this is the law between master and servant, where
there is danger known to the servant, and no statute for his protec-
tion, w;e need not now consider, because the plaintiff in this case was
not a servant of the defendant, but the servant- of the patentee. The
question was adverted to, but not decided, in Clarke 7j. Holmes, 7
H. & N. 937.

The authorities respecting guests and other bare licensees, and
those respecting servants and others who consent to incur a risk,
being therefore inapplicable, we are to consider what is the law.
as to the duty of the occupier of a building with reference to per-
sons resorting thereto in the course of business, upoiThis ufvitation,
express or implied. The common case is that of a customer in a
shop:^ but it is obvious that this is only one of a class; for, whether

"Polenskc v. Lit Bros., 18 Pa. S. C. 474 (1901) ; Bloomer v. Snellenberg,
221 Pa. 25 (1908); Moore v. Korte, 77 Mo. App. 500 (1898); a customer
entering not liy the public door but by one not open to the public, may
recover if injured after {Burk v. Walsh, 118 Iowa, 397, 19021, but not if
injured before {Flanagan v. Sanders, 138 Mich. 253. 1904) that part of the
store prepared for the reception of customers is reached.

For other examples of persons held to be business guests, see Dai's v.
Ferris, 53 N. Y. Supp. 571 (1898), wife of intending purchaser inspecting
lumber in yard; Schvizer v. Phillips, 108 N. Y. App. Div. 17 (1905), patrons
of restaurant on ocean pier; True v. Meredith Creamery. 72 N. H. 154
(1903), farmers taking milk to creamery to be separated; Pauckncr v. Wakem,
231 111. 276 (1907), servant sent to remove goods stored in warehouse:
Carleton v. Franconia Co., 99 Mass. 216 (1868), vessel injured by rock at



440



INDERMAUR Z'. DAMES



the customer is actually chaffering at the time, or actually buys or
not, he is, according to an undoubted course of authority and prac-
tice, entitled to the exercise of reasonable care by the occupier to
prevent damage from unusual danger, of which the occupier knows
or ought to know, such as a trap-door left open, un fenced, and un-
lighted -.^ Lancaster Canal Company v. Parnaby, ii Ad. & E. 223 ; per
cur. Chapman v. Rothwell, E. B. & E. 168, 27 L. J. ( O. B.) 315,
where Southcote v. Stanley, i H. & X. 247, w-as cited, and the Lord
Chief Justice, then Erie, J., said: "The distinction is between the
case of a visitor (as the plaintiff was in Southcote v. Stanley), who
must take care of himself, and a customer, who, as one of the public,
is invited for the purposes of business carried on by the defendant."
This protection does not depend upon the fact of a contract being
entered into in the way of the shopkeeper's business during the stay
of the customer, but upon the fact that the customer has come into
the shop in pursuance of a tacit invitation given by the shopkeeper,
with a view to business which concerns himself. And, if a customer
were, after buying goods, to go back to the shop in order to com-
plain of the quality, or that the change was not right, he would be
just as much there upon buisness which concerned the shopkeeper,
and as much entitled to protection during this accessory visit, though
it might not be for the shopkeeper's benefit, as during the principal
visit, which was. And if, instead of going himself, the customer
were to send his servant, the servant would be entitled to the same
consideration as the master.

The class to which the customer belongs includes persons who
go not as mere volunteers, or hcensees, or guests, or servants, or
persons whose employment is such that danger may be considered
as bargained for, but who go upon business which concerns the occu-
pier, and upon his invitation, express or implied.

And, with respect to such a visitor at least, we consider it set-
tled law, that he, using reasonable care on his part for his own

entrance to dock; Bennett v. R. R., 102 U. S. 577 (1880), passengers using
wharf as approach to train; McKee v. Bidzvell, 74 Pa. 218 (1873), persons
delivering goods at defendant's place of business. Xo invitation will be
implied in favor of one with whom the owner ma}- not lawfully deal. Rolles-
tone V. Cassirer, 3 Ga. App. 161 (1907), drunken man entering bar-room.

^The plaintiff's visit need not be directly profitable to the owner, it is
enough that it be connected with and incidental to the business carried on
on the premises. Low v. Grand Trunk R. R., 72 Me. 313 (1881), custom
house officer on steam boat wharf; Tobin v. R. R., 59 Me. 183 (1871), hack-
man bringing passengers to station; ///. Cent. R. R. v. Hopkins, 200 111. 122
(1902), woman serving meals at station to mail clerks on defendant's trains;
McKone v. R. R., 51 ^lich. 601 (1883) ; Wafkins v. Ry. Co., 37 L. T. N. S.
193 (C. P. Eng., 1877), Denman, J., p. 194; Hamilton v. R. R., 64 Tex. 251
(1885), man going to station to meet his wife, a passenger; Axford v. Prior,
14 W. R. 611 (Eng., 1866), averment that plaintiff was lawfully in an inn
"as a guest," supported by evidence that he was waiting in the tap-room for
a friend who was a guest. As to the status of persons coming on business
premises to seek employment, see McDonoiigh v. Reilly Co., 90 N. Y. Supp.
358 (1904), such persons held to be business guests when invited in pursu-
ance of a custom to solicit applications, cf. White v. France, L. R. 2, C. P. D.
308 (1877) ; aliter, if in the absence of invitation or custom the plaintiff
comes on mere chance of obtaining employment; but see Oats v. Dock Co.,
109 N. Y. App. Div. 841 (1905).



INDERMAUR V. DAMES 44I

safety, is entitled to expect that the occupier shall on his part use
reasonable care to prevent damage from unusual danger, which he
knows or ought to know; and that, where there is evidence of neg-
lect, the question whether such reasonable care has been taken, by
notice, lighting, guarding, or otherwise, and whether there was con-
tributory negligence in the sufferer, must be determined by a jury
as matter of fact.

In the case of Wilkinson v. Fairrie, i H. & C. 633, relied upon
for the defendant, the distinction was pointed out between ordinary
accidents, such as falling down stairs, which ought to be imputed
to the carelessness or misfortune of the sufferer, and accidents from
unusual, covert danger, such as that of falling down into a pit.

It was ably insisted for the defendant that he could only be
bound to keep his place of business in the same condition as other
places of business of the like kind, according to the best known mode
of construction. And this argument seems conclusive to prove that
there was no absolute duty to prevent danger, but only a duty to
make the place as little dangerous as such a place could reasonably
be, having regard to the contrivances necessarily used in carrying
on the business. But we think the argument is inapplicable to the
facts of this case; first, because it was not shown, and probably
could not be, that there was any usage never to fence shafts; sec-
ondly, because it was proved, that, when the shaft was not in use,
a fence might be resorted to without inconvenience : and no usage
could establish that what was in fact unnecessarily dangerous was
in law reasonably safe, as against persons towards whom there was
a duty to be careful.

Having fully considered the notes of the Lord Chief Justice, I
w'e think there was evidence for the jury that the plaintiff* was in the
place by the tacit invitation of the defendant, upon business in
which he was concerned ; that there was by reason of the shaft un-
usual danger, known to the defendant; and that the plaintiff' sus-
tanied damage by reason of that danger, and of the neglect of the]
defendant and his servants to use reasonably sufficient means to
avert or warn him of it : and we cannot say that the proof of con
tributory negligence was so clear that we ought on this ground tc
set aside the verdict of the jury.

As for the argument that the plaintiff contributed to the accident
by not following his guide, the answ^er may be, that the guide, know-
ing the place, ought rather to have waited for him ; and this point,
as matter of fact, is set at rest by the verdict.

For these reasons, we think there was evidence of a cause of
action in respect to which the jury were properly directed ; and. as
every reservation of leave to enter a nonsuit carries with it an im-
plied condition that the Court may amend, if necessary, in such a
manner as to raise the real question, leave ought to be given to the
plaintiff", in the event of the defendant desiring to appeal or to bring
a writ of error, to amend the declaration by stating the facts as
proved, — in effect, that the defendant was the occupier of and car-
ried on business at the place ; that there was a shaft, very dangerous
to persons in the place, which the defendant knew and the plaintiff
did not know ; that the plaintiff, by invitation and permission of the



442 INDERMAUR V. DAMES

defendant, was near the shaft, upon business of the defendant, in
the way of his own craft as a gas-fitter, for hire, &c., stating the
circumstances, the neghgence, and that by reason thereof the plain-
tiff was injured. The details of the amendment can, if necessary, be
settled at chambers.

Rule discharged.
[An appeal having been taken to the Exchequer Chamber.]
Kelly, C. B.* — Then what duty is imposed by law on the de-
fendant? It appears that the place was a sugar refinery and Mr.
Griffits was correct in alleging that places of that sort have shoots
and holes of this description, and which are without any fence or
safeguard. That may well be so, but the question is, if a person
having premises of that sort enters into a contract for the perform-
ance of work, and if in the course of the performance of that work
workmen have to go by these places and know nothing of the prem-
ises, the employer or occupier is not bound to put up a fence or
some safeguard, or to give reasonable and intelligible noticed per-
sons going on the spot ;^ in fact, to give notice that there is an unj
fenced hole, and so to put them on their guard. -J

Judgment affirmed. "



* i6 L. T. N. S. 293, p. 294 (1867). Somewhat differently reported in
L. R. 2, C. P. 311-

""The proposition is, that this was a danger which was known to the
defendant, but of which the plaintiff, to the knowledge of the defendant,
was ignorant," per Willes, J., L. R., i C. P., p. 278, in course of argurnent.
When the plaintiff through coming on the premises on the owner's business
has no right to enter save through the consent of the owner, he is only entit-
led to notice of the actual condition which he is to meet thereon, as known
to the owner or as discoverable by reasonable care by the latter; see Lord
Atkinson, Cavalier v. Pope, L. R. 1906, A. C. 428, p. 432.

So an owner is not liable for injuries due to the defective condition of
the premises or appurtenance or to the dangerous methods in which the
owner carries on his business, if known to the plaintiff, Sullivan v. Gas Co.,
190 Mass. 288 (1906) ; Woodley v. R. R., L. R. 2, Ex. Div. 384 (1877), but
see Horton v. Harvey, 119 Ga. 219 (1903). or obvious, Stevens v. Gas Co.,
73 N. H. 159 (1905); Connolly v. Union League, 221 Pa. 21 (1908); The
Clan Graham, 163 Fed 961 (1908), or such as are usually to be met with in
the place to which he goes, Wilkinson v. Fairrie, i H. & C. 633 (1862), a
plaintiff going along a dark passageway fell down a staircase. A nonsuit was
directed by Bramwell, B., on the ground "that if it was so dark he could
not see, he ought not to have proceeded without a light, if it was sufficiently
light for him to see, he might have avoided the staircase," which says Pollock,
C B , p. 63s "is a very different thing from a hole or a trap door," cf.
Paddock V. N. E. Ry. Co., 18 L. T. N. S. 60 (1868), and see Beven Negli-
gence, 3rd ed., 450. .

One coming on the owner's busmess to a part of the premises specially
prepared for his reception may assume that no dangers exist therein and
need not be on the alert to discover its true condition, Bloomer v. Snellen-
berg, 221 Pa. 25 (1908), a customer in a shop may assume that the aisles are
free' from dangerous obstructions and need not exercise the same vigilance
as if walking on the highway: Aliter, when one goes even on business, as
for example to do work thereon, to premises or a part thereof manifestly
prepared for the conduct of the owner's private business, and when he must
realize that no special preparations have been made for him. Hotchkin v.
Erdich, 214 Pa. 460 (1906); Connolly v. Union League, 221 Pa. 21 (1908).
•So in Pauckner v. Wakem, 231 111. 276 (1907). Vickers, J., says, p. 279,
"It will be found that the distinction between a visitor who is a mere li-



TRASK, ADMIMSTKATOR i'. SHOT WELL 443



TRASK, ADMINISTRATOR v. SHOTWELL.
Supreme Court of Minnesota, 1889. 41 Minn. 66.

Appeal by plaintiff from an order of the district court for Hen-
nepin County' refusing a new trial, the action having been tried be-
fore Yunuy^ ]., and a verdict for defendants.

Collins, J. The defendants were wholesale dry goods merchants.
In the rear of their store was their shipping room, opening upon an
alley. In one corner of this shipping-room was a small office. Plain-
tiff having purchased goods from them sent his nephew, the deceased,
with a team to get them. One package was given him at the main
entrance of the store and he was told by the clerk to go to the door of
the shipping-room, rap upon it and the shipping clerk would give him
the rest of the goods. The clerk testified that he told the deceased to
wait outside. The deceased however went into the shipping-room
and closed the door and was found a few minutes later in a dying
condition upon the basement floor, having fallen down an unguarded
elevator shaft situated fifteen feet from the door.^

There was considerable testimony offered and received as to the
condition of the light, from a window and by artificial means, in this
shipping-room at the time Trask entered it. That oft'ered by the
plaintiff was to the effect that.it was a dark and insufficiently lighted
room, while the testimony in defendant's behalf tended to show^ l4iat
the room was well lighted, that the elevator shaft was in plain sight,
and, consequently, in any aspect of the case, Trask was guilty of
contributory negligence. In our opinion, it is not necessary to con-
sider this branch of the testimony at all.

It is evident that this shipping-room was not used by the general
public. The witnesses examined on this point stated, w^ithout ex-
ception, that no one was allowed to go in there except persons in
defendant's employ, teamsters who were specially invited inside to
aid the porters in handling heavy packages or cases, and two or three
expressmen, who habitually received and delivered goods at that
place in the building. When all of the testimony in the case had been
laid before the jury, the trial court ordered a verdict for the defend-
ants, and it is this ruling which we are called upon to review. * *



censee and one who is on the premises by invitation turns on the nature of
the business that brings him there, rather than on the words or acts of the
owner which precede his coming." "The duty to one who comes on the
premises by the owner's invitation to transact business in which the parties
are mutually interested is to exercise reasonable care for his safety while
on that part of the premises required for the purposes of his visit;" see also
Gayiior. J., in Forbrick v. Gcu. Elcc. Co.. 92 N. Y. Supp. 36 (i904'>. "tbe
word invitation is carelessly used in some cases. It has no application ex-
cept in the case of a person invited by another to go on his premises for
business or association of some kind with the latter. Permission to go on
defendant's premises for his (the plaintiff's) own purposes (to sharpen his
plane at defendant's grindstone) was not an invitation." See also Larmorc
V. Crozvn Point Iron Co.. loi X. Y. 39i (i!?S6). and KnowUon, J., in Plum-
mer v. Dill, 156 Mass. 426 (1892).

'The Court's statement of facts is condensed.



444 HUPFER V. NATIONAL DISTILLING COMPANY

The deceased had not been invited or induced, directly or by impli-
cation into the shipping-room. In fact, it is undisputed that he had
been told to stay outside. He did not enter the room because he had
been led to believe that it was intended for use by customers or others
having business at the store, and that such use was not only acquiesced
in by the defendant proprietors, but that it was a part of the premises
designed for the use of all who might have business with them. He
entered this apartment of his own motion, and contrary to express
instructions. Going into a place not prepared for visitors or custom-
ers, intended for those only who were employed about and were
familiar with it and its dangers, he assumed the risk and peril of
the act.^

Order affirmed.



HUPFER V. NATIONAL DISTILLING COMPANY.

Supreme Court of Wisconsin, 1902. 114 Wis. 279.

This is an action to recover damages for negligently causing the
death of the plaintiff's intestate, Simon Hupfer, September 13, 1899.



^ This is so though the plaintiff be not specifically or inferentially for-
bidden to go to that part of the premises where he is injured, Diebold v.
R. R., 50 N. J. L. 478 (1888), truckman injured in freight yard, though safe
ofifiQ^s were provided for the transaction of his business; Peake v. Buell, 90
Wis. 508 (1895), business guest, out of curiosity putting his head through
window, struck Ijy elevator; Shais: v. Goodman, 116 Mo. App. 2>Z2 (1905).
person sent on business to distant part of premises instead of going by
regular passage takes a short cut through a private room.

If however the owner himself or through his servant or agent actively
invites the plaintiff into a place, not specially prepared for business guests
and where they are usually not received, he is bound to take care that it
does not contain danger unusual and unnecessary in such a place, Reid v.
Linck, 206 Pa. 109 (1903), customer following salesman at his request
through storeroom not usually open to customers ; Nicholson v. Ry., 3 H.
& C. 534 (1865), passengers told to "go on" when the usual way to exit
blocked by the train, held to be entitled to find the only other alternative
way out, i. e., by passing around the train, free from hidden danger ; Withers
V. Brooklyn R. E. Exch., 106 N. Y. App. Div. 255 (1905), intending lessee
of office in defendant's building finding on office door a sign, "inquire of
engineer," went to basement where he was told engineer was and fell into
ash pit; League \. Stradley, 68 S. C. 515,(1903), customer, told by shop-
keeper to go behind counter to get a parcel, fell into open trap door ; New-
ingham v. /. C. Blair Co., 232 Pa. 511 (1911), a workman permitted or re-
quired to use a fire escape as a means of getting to his place of work, in-
jured by a defect therein.

One specially invited into premises in private use of owner takes the
risk incident to the normal and proper conduct of owner's business thereon,
McLean v. Burnham, 19 W. N. C. 53 (Pa., 1887) ; though if an owner chooses
to receive his customers in his workshop he must take pains that it con-
tains no hidden and unusual danger; True v. Meridith Creamery, 72 N. H.
154 (1903); Edmundson v. Monongahela Co., 223 Pa. 93 (1909).

Even though expressly invited to use a portion of the premises not usu-
ally thrown open to customers, the plaintiff is only protected while using it
in a marnor and to an extent authorized by the invitation, Rycrson v. Bath-
gate, 67 N. J. L. 337 (1901), a butcher opened a door and told the plaintiff
who' was bringing home his cat to "put her in there," instead plaintiff pre-
suming it was a closet door stepped inside and fell down some steps within.

One coming upon premises for a purpose, incidental to the owj-er'? busi-
ness but remaining after his business is done for his own convenience is a
mere licensee, Heinlein v. R. R., 147 Mass. 136 (1888), intending passenger
having missed the last train, loiters there till station is closed and is injured
in leaving.



HUPFER Z'. NATIONAL DISTILLING COMPANY 445

At the cIo?e of the trial the jury returned a special verdict, to
the effect ( i) that Simon ilupfcr received injuries by the bursting of
the defendant's slop vat, September 13, 1899, from which he died;
(2) that the hoops on the vat at the time of the accident were rusted,
so as to be defective and unfit for the purpose for wdiich they were
used; (3) that the defendant did not know of such defective con-
dition of the hoops prior to the accident; (4) that the defendant in
the exercise of ordinary care ought to have known of such defective
condition of the hoops prior to the accident; (5) that such defective
condition of the hoops was the proximate cause of the injury; (6)
that September 13, 1899, it was a long-established custom for de-
fendant's customers, desiring to purchase feed to be delivered from
the vat in question, to stir the feed for themselves, if they desired to
do so ; ( 7 ) that such custom was known to, and acquiesced in by,
the defendant; (8) that the defendant's customers, prior to the acci-
dent, did know that the defendant had provided a person whose duty
it was to stir up the slop in the vat and deliver the same to the
customers of the defendant; (9) that the deceased, prior to the acci-
dent, did know that the defendant had made it the duty of John
Dardell to stir up the slop in the vat and deliver the same to the
customers of the defendant; (10) that the defendant, prior to the
accident, did repeatedly suffer the deceased to step upon the back
platform and stir up the slop, and did suffer the deceased to do so
because it feared to lose the custom of the deceased if it should for-
bid him; (11) that the deceased, in the exercise of ordinary care,
ought not to have known of such defective condition of the hoops
prior to the accident ; ( 12) that the deceased was not guilty of a want
of ordinary care which proximately contributed to the injury; (13)
that they assessed the plaintift"s damages at Si, 000.

From the judgment entered thereon for the amount stated, the
defendant brings this appeal.

Cassoday, C. J. Upon such findings and testimony, can we
hold that the deceased was a mere licensee within the authorities?
* * * In Bennett v. Railroad Co., 102 U. S. 577, 584, 585. it
is said, quoting from an author, that "the principle appears to be that
invitation is inferred 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". Similar views are ex-
pressed in Mr. Thompson's late Commentaries on the Law of Neg-
ligence (\'ol. I. p. 968), citing numerous cases in support of the
rule. We must hold that, under the findings of the jury, the deceased
cannot be regarded as a mere licensee, but that he was there on busi-
ness for the mutual benefit of himself and the defendant ; or, in other
\vords. by invitation.^ There is evidence tending to support such
findings.

Bv the third and fourth findings the jury found, in effect, that
the defendant did not know of the defective condition of the hoops
prior to the accident, but that it ought to have known oi siich defect
prior to the acci(,lcnt. It is claimed that the evidence is insufficient
to support this last finding. It appears that the tank was constructed

* Part of each opinion is omitted.



446 HUPFER Z\ NATIONAL DISTILLING COMPANY

in 1894 ; that the average Hfe of such a tank used as that was without
necessitating repairs was ten years or more ; and that that tank was
inspected and found in good condition in June or July prior to the
accident. Of course, if the defect was latent and unknown to the
defendant, and undiscoverable by the exercise of ordinary care on
the part of the defendant, then there would be no liability.- Smith
V. C. M. & St. P. R. Co., 42 Wis. 520: Morrison v. Phillips & C. C.
Co., 44 Wis. 405 ; Spille v. JVis. B. & I. Co., 105 Wis. 340. 81 N. W.