Brooks v. Henrietta Mills Co.

Adams, J. The right of the plaintiff to recover damages is conditioned in part upon the legal relation that existed between him and the defendant at the time of the alleged injury. In substance, the plaintiff’s allegations are, (1) that the defendant directed and controlled the ball team that used the premises and stretched the rope across the road; and (2) that the defendant wrongfully licensed or permitted the team to obstruct the road in this way. It is true that a ball team had been organized to play baseball on the defendant’s premises; but there is no evidence that the defendant had anything to do with the “operation” or control or management of the game, or that those who played or conducted the game were in any sense the servants or agents of the defendant. In fact, the evidence seems conclusively to show that the defendant prepared the ground, purchased playground fixtures, and erected a grandstand for the amusement and recreation of the operatives, but did not receive any pecuniary compensation, or pretend in any way to direct or supervise the game. The defendant, therefore, can derive no aid from the familiar principle that the owner or lessor of a place of amusement set apart and maintained for his pecuniary benefit is charged with the duty of exercising due care to see that the premises are reasonably safe for the purposes intended. 38 Oyc., 268 et seq.; 26 E. C. L., 713 et seq. The plaintiff contends, however, that the obstruction of the road constituted a nuisance on the defendant’s premises, and that the defendant, having notice thereof, declined to abate the nuisance, and is therefore liable to the plaintiff in damages. That the unlawful obstruction of a highway is a public nuisance is generally conceded. 29 Cyc., 1177; 20 R. C. L., 399; Dunn v. Gunn, 149 Ala., 583; S. v. Edens, 85 N. C., 527. But the plaintiff has not shown either that the defendant obstructed the road or had knowledge of the obstruction. The plaintiff relied chiefly upon the testimony of the witness Eobbins; but this testimony utterly fails to connect the defendant with the management or control of the game, or to prove that the defendant had actual or implied knowledge of the obstruction in the road. It is manifest that between the defendant and the ball team there existed the relation of licensor and licensee, without any pecuniary compensation to the defendant, and that the team, without notice to or knowledge of the defendant, caused the rope to be extended above and across the road. In these circumstances the *722 plaintiff bas no cause of action against the defendant. As a general rule, the owner of land is not liable for injury caused by the acts of a licensee unless such acts constitute a nuisance -which the owner knowingly suffers to remain. 38 Cyc., 483. The doctrine is pertinently stated in Rockport v. Granite Co., 51 L. R. A., 779 : “In case of work done by a licensee, the work is done on the licensee’s own account, as his own business, and the profit of it is his. It is not a ease, therefore, where the thing which caused the accident is a thing contracted for by the owner of the land, and for which he may be liable for that reason.” Upon a review of the record we think the judgment of nonsuit should be Affirmed.