Dunn v. . Bomberger

Barnhill, J. Where tbe State Highway Commission, its contractors or employees, enter upon tbe premises of an individual under and by virtue of tbe power vested in tbe State by tbe provisions of tbe State bigbway statute, those so entering upon the lands of another are licensees. There is no allegation in tbe complaint that any part of tbe lands of tbe defendant bad been condemned. It is merely alleged that tbe State Highway Commission, in tbe process of widening State Highway No. 10, adjacent to tbe lands of tbe defendant, entered upon tbe lands of tbe defendant and were removing, or causing to be removed, a part of tbe soil thereof, and that tbe plaintiff’s intestate was an employee of tbe contractor or agent of the State Highway Commission in charge of tbe work. Hnder these circumstances tbe plaintiff’s intestate was a mere licensee, for an employee of a licensee occupies tbe same relationship towards tbe owner of tbe land as bis employer. As plaintiff’s intestate was a licensee, defendant did not owe him the duty to keep bis premises in a reasonably safe condition. Tbe only duty resting upon tbe defendant was to refrain from willful or wanton negligence and from tbe commission of any act which would increase tbe hazard. Tbe owner of land is not required to keep bis premises in a suitable or safe condition for those who come there solely as licensees and who are not either expressly invited to enter or induced to come upon them for tbe purpose for which tbe premises are appropriated and occupied. In authoritative decisions of tbis and other jurisdictions tbe degree of care to be exercised by tbe owner of premises toward a person coming upon tbe premises as a bare or permissive licensee for bis own convenience is to refrain from willful or wanton negligence and from doing any act which increases tbe hazard to tbe licensee while be is upon tbe premises. Tbe owner is not liable for injuries resulting to a licensee from defects, obstacles or pitfalls upon tbe premises unless tbe owner is affirmatively and actively negligent in respect to such defect, obstacle or pitfall while tbe licensee is upon bis premises, resulting in increased hazard and danger to tbe licensee. Brigman v. Construction Co., 192 N. C., 791, and cases there cited. Tbe Brigman case is reported and annotated in 49 A. L. R., 773. *176 Speaking to the subject in Peterson v. R. R., 143 N. C., 260, it is said: “A licensee who enters upon premises by permission only, without any enticement, allurement, or inducement being held out to him by the owner or occupant, cannot recover damages for injuries caused by obstructions or pitfalls. He goes at his own risk and enjoys the license subject to its concomitant perils.” Does the complaint allege any failure on the part of the defendant to perform any legal duty which he owed the plaintiff’s intestate, a licensee upon defendant’s premises? Stripped of all unnecessary verbiage and boiled down to their bare essentials the allegations are that the defendant had and maintained upon his premises an underground drain pipe which had caused the soil at the outlet of the drain pipe to become saturated and softened to the extent that said land would not support itself in the event of excavation by the State Highway Commission, and that the defendant, knowing that the deceased was on his premises as a licensee, negligently failed to warn the deceased, or his employer, of the drain pipe and the saturated and softened condition of the soil when he knew that excavation was being done or was to be done; and that the defendant failed to instruct his agents or tenants to discontinue the use of said secret and hidden drain pipe for the discharge of waste water after he knew that excavation of his land was in progress, and that the saturated condition of the soil would cause it to cave in during the progress of excavation. The defendant had a legal right to construct an underground drain pipe upon his land and use it for the discharge of waste water. In so doing he breached no duty he owed to plaintiff’s intestate. This is recognized by plaintiff, for it is said in her brief filed in this case: “It has never been our understanding of the case that plaintiff seeks to condemn the defendant for installing a drain pipe in his own soil. . . . He should be answerable for his failure to give timely notice and warning to the plaintiff’s intestate of the hidden peril, which the defendant knew existed and which the plaintiff’s intestate did not know existed, under circumstances where the defendant knew plaintiff’s intestate was in the presence of the hidden peril. “It is not, therefore, a mere question of the defendant’s failure to keep the premises safe for plaintiff’s intestate, assuming he was a mere invitee, but rather the duty owed when the defendant, with knowledge of the conditions, and of the plaintiff’s intestate’s presence, failed to warn the plaintiff’s intestate of the hidden peril about him.” No liability, therefore, attaches to the defendant merely by reason of the existence of the conditions complained of. It follows that the one essential allegation of negligence contained in the complaint is that the defendant failed to warn the plaintiff’s intestate and his employer of the conditions *177 existing upon bis land, wbicb would become dangerous in tbe event excavation was attempted. Tbe failure to warn is negative'ratber tban active in its nature. By failing to warn tbe defendant created no new danger, nor did be increase tbe hazard and danger attendant upon tbe condition of tbe land. Tbe plaintiff having assumed tbe risk incident to bis entry upon the premises of tbe defendant, no duty rested upon the defendant to warn him of tbe probable results of such conduct. It is to be noted that tbe plaintiff does not allege that tbe condition created by tbe underground drain pipe was in itself dangerous or that such condition created a bidden defect or pitfall. She alleges only that tbe soil bad become so saturated and softened that said land would not support itself in the event of excavation by said State Highway Commission. Tbe alleged dangerous condition was created by tbe active conduct of the Highway Commission, or its agents, in undertaking to excavate at a point where tbe soil was saturated and softened by tbe water. This condition was created not by tbe defendant, but by tbe licensee. Tbe defendant cannot be held liable for tbe resultant injury. Furthermore, in order to establish actionable negligence tbe plaintiff must show that tbe defendant, in tbe exercise of ordinary care, could foresee that some injury would result from bis alleged negligent act. Tbe law does not require omniscience of tbe defendant. It is admitted that tbe conditions wbicb existed upon tbe defendant’s premises in themselves, unaccompanied by any acts of excavation on the part of others, created no danger to plaintiff’s intestate and was not a negligent breach of duty. It could not be said that a man of ordinary prudence could foresee, or should be charged with tbe duty of foreseeing, that tbe agents of tbe Highway Commission would excavate lands at a point where it was so saturated as to make it dangerous to those doing tbe work and would continue such excavation after tbe condition of tbe land was discovered. Tbe plaintiff’s intestate and bis employer were on tbe scene, actually engaged in tbe work of excavation. They were tbe ones who first bad tbe opportunity of discovering tbe condition of tbe soil. They either negligently failed to discover such condition or, having discovered it, continued to work in tbe face of a recognized danger. The conduct of tbe employer of tbe deceased was active, that of tbe defendant was negative. Tbe employer of deceased actually created tbe danger by excavating at a point where tbe banks would cave in, or by excavating in such a manner as to cause them to cave in. They were on tbe defendant’s premises without invitation, by virtue of tbe terms of tbe law wbicb prohibited tbe defendant from ejecting them from bis land. We cannot conceive under these circumstances that tbe law would be so oppressive as to require tbe defendant to give tbe Highway Commission, or its contractor, or employee, notice of tbe conditions upon bis land, or *178 require him to exercise a higher degree of omniscience in foreseeing the probable results of such conduct on the part of the Highway Commission than it and its agents and employees were required to exercise. It is unnecessary for us to discuss whether the act of the Highway Commission, in continuing to excavate the soil at a point where the soil was in the condition described by the plaintiff, constituted an act of intervening insulating negligence, such as would in any event free the defendant of liability. Certainly it may be said that those who were actually engaged in the work had a better opportunity to discover the danger which would arise from the excavation of the soil, which was in the condition described by the plaintiff, than did the defendant. The judgment entered by the judge of the county court was correct, and the exception of the plaintiff thereto should have been overruled. The judgment below is Reversed.