Fox v. . Warner-Quinlan Asphalt Co.

Willard Bartlett, J. At the time of the accident out of which this suit has arisen and for several years prior thereto the defendant corporation was the owner of an open field within the limits of the city of Syracuse which is described as bounded on the north by West Brighton avenue, on the east by Midland avenue, on the south by West Lafayette avenue and on the west by Onondaga creek. Between seven and eight o’clock on the evening of October 13, 1908, the plaintiff was walking across this tract along a route over which the public had been accustomed to travel on foot and in vehicles for a considerable *243 number of years when he fell into an excavation and was injured. The excavation was part of a sand and gravel pit which the defendant had begun to dig five years before and had enlarged from time to time. The plaintiff brought this action to recover damages for the injuries thus sustained, charging in his complaint that the public had used the route across the lot at the invitation of the defendant and its - grantors, and that the excavation was negligently left unguarded. He was nonsuited at the Trial Term but the Appellate Division has reversed the judgment in favor of the defendant and granted a new trial. There was no evidence of any invitation to the public to travel over the diagonal route across the defendant’s land which they used for convenience as a short cut from one street to another. It had never been dedicated to the public use or worked by the highway authorities. All that can be said in plaintiff’s behalf on this branch of the case is that the defendant did not forbid or in any manner interfere with public travel over it. Under these circumstances the plaintiff went upon the defendant’s land as a bare licensee at best; and the measure of the defendant’s obligations to him was that of a landowner to such a licensee. The extent of this obligation was accurately stated and fully considered by Judge Gray in Cusick v. Adams (115 N. Y. 55. See cases therein cited.) “The principle is now well settled by repeated adjudications, in this country and in England, that where a person goes upon the premises of another without invitation but, simply as a bare licensee, and the owner of the property, passively, acquiesces in his coming, if an injury is sustained by reason of a mere defect in the premises, the owner is not liable for negligence; for such person has taken all the risk upon himself.” (p. 59.) In the case cited the plaintiff was injured by falling through a hole in a bridge which had become defective in *244 consequence of a failure to repair, while here the plaintiff was injured by falling into an excavation being carried on at the time of the accident. It is suggested that this difference renders the rule inapplicable which was declared in Cusick v. Adams, inasmuch as the injury to the plaintiff here was due to a progressive act on the part of the defendant; and Beck v. Carter (68 N. Y. 283) is cited in support of this distinction. It does not seem to me, however, that the decision in the latter case can have been intended thus to limit the general rule. In the opinion it is expressly declared that if the owner of land give a bare license or permission to cross his premises the licensee takes the risk of accidents in using the premises in the condition in which they are; and the court cites with approval the English case of Hounsell v. Smith (7 C. B. [N. S.] 730), in which a mere licensee fell into an uninclosed quarry near and between two public highways in the night time; aild it was held that the failure to safeguard the excavation gave the injured person no right of action. Furthermore, it is to be noted that Be'ck v. Carter “was not the case of a bare permission by the owner to cross the land adjoining a public street,” whereas this is precisely such a case. In Reardon v. Thompson (149 Mass. 267) the plaintiff fell into a hole on the rear end of the defendant’s lot. This hole was situated in an eight-foot strip of land over which the plaintiff undertook to pass for convenience without any invitation from the owners to use it. The court said that the failure to prohibit the use of the strip was not an invitation, and that the defendant was under no obligation to furnish short cuts from every street in the neighborhood; and the general rule applicable to cases of this character was declared to be that “a licensee goes upon land at his own risk and must take the premises as he finds them. An open hole which is not concealed otherwise than by the darkness of night is a danger which a licensee must avoid at his peril.” *245 It thus appears that as to mere licensees the extent of the obligation of the owners or occupiers of land not chargeable with affirmative negligence is to refrain from inflicting upon such licensees intentional or wanton injury and from setting dangerous devices thereon such as spring-guns or like agencies for the purpose of harming trespassers. (Weitzmann v. Barber Asphalt Co., 190 N. Y. 452.) All that the defendant did here was to continue an excavation upon its own land which it had the right to begin and prosecute without let or hindrance from strangers. Furthermore all that it did in this behalf was done openly and visibly; and this brings us to the second branch of the case which relates to the degree of the care exercised by the plaintiff himself. The record clearly and conclusively shows that he did not exercise any care whatever. He was thoroughly familiar tvith the locality, and he knew that the excavation was going on and that its trend was toward the short cut across the defendant’s land. It has been declared by this court that dangerous work in plain sight is notice to a mere licensee. (Downes v. Elmira Bridge Co., 179 N.Y. 136, 142.) So familiar was the plaintiff with the progress of this excavation that he was able to testify that on the 1st of August before the accident it had “worked down to a point about thirty feet from this route,” and that on the 1st of October, thirteen days before he was hurt, it had progressed five feet further. Although the night was dark, so dark that he could not see his hand before him, and the plaintiff knew that the excavation was near him, within eight or ten feet of the path, he appears to have gone right on without making any effort whatever to discover its whereabouts or whether it had advanced up to the roadway as might reasonably have been conjectured from his previous knowledge of the manner in which the work was being conducted. A person who makes use of the premises of another for his own convenience and without any sanction save the omission of *246 the owner to forbid him from doing so has no legal cause of complaint against the owner by reason of having carelessly blundered into an excavation on the land. Such is the case of this plaintiff and I think he was properly non-suited at the Trial Term. The order of the Appellate Division should be reversed and the judgment of the Trial Term affirmed, with costs in both courts.