Johnson v. Paducah Laundry Co.

— 371 — OpiwioN op the Const by Chief Justice Hobson Affirming. The Paducah Laundry Company- has at the rear of its laundry, on Fifth and Jefferson streets, in Padu-cah, a vat, into which the pipes containing .the steam from- the laundry are run to he condensed; .the steam coming from -the boiler in the dry room. The. vat is 6 feet deep, 3 feet, wide, 12 feet long, and is kept full of water. It is four feet from the sidewalk and is situated in ah-open lot. On the' 18th of. January, 1904, George Johnson went to church with his-uncle, and, as they went home, Iris uncle, desiring to .step-aside on a call of nature, they started for the wagon yard,'and for this purpose left the sidewalk near-the vat and started across the lot. It was dark ,and all at once Johnson,slipped into- the vat; which was filled with boiling water. His arms caught on the edge of the vat as he wlent down, but he was badly scalded up, to the; waist. His. injuries were very painful, .and to some .extent permanent. He was laid up for some time. He was compelled to, spend -large sums. in doctor’s bills. The vat was left open much of the time. The manager’s attention had-been called to.it before the accident. The plaintiff also .offered to, show, that another person .had previously fallen into.it. , There was a wooden top covered with zinc -which Was sometimes put over-the vat,-, but it was not .fastened -in any way. The street "was a. much traveled street. There was no danger, from the yat as long as a man stayed on the pavement. The lot was-open and .uninclosed, the top of the vat was level with the. ground, and. there Was nothing to give notice of the danger when it was dark. The defendant, at the conclusion of the plain — 372 — tiff’s evidence, introduced its witnesses and showed' by its manager that the laundry shut down about 6 o'clock, and that about the time it was. shut down the top was on the vat. The accident to Johnson happened about 8 o’clock. It also showed that persons in the neighborhood would come upon the lot and get water out of the vat. At tire conclusion of all the evidence, the court peremptorily instructed the jury to find for the defendant, and tire1 plaintiff appeals. It is conceded that Joimson was a trespasser upon appellee’s property, and the question to be determined is whether the laundry is liable for maintaining so dangerous an excavation within four feet of the highway. The rule of law on the subject is thus stated in 2 Shearman & Redfield on Negligence, section 715: “The occupant of the land is'under no., obligation to strangers to place guards around excavations made by him, unless such excavations are so near a public way as to be dangerous, under ordinary circumstances, to persons passing upon the way and using proper care to keep upon the proper path, in which case he must take reasonable precautions to prevent injuries to such persons. Where the excavation is .’at a considerable distance from the public path, there can be no question that the owner or occupant is not liable to a mere stranger falling therein, whether-consciously or unconsciously; but he is liable if he leaves an unguarded excavation so near to- the highway that a person accidentally slipping' from the highway falls into it. Of course, it is culpable negligence to leave a pit or other excavation in such an unguarded state as to cause injury to a person having a right to be upon the land, and using that — 373 — right with ordinary care; and 'álthough a passenger along the highway, in endeavoring to avoid the excavation, goes npon the excavator A land, that fact does’not of itself bar his right of recovery. ” To same effect, see 1 Thompson on Negligence, section 1228, and cases cited. In this section several illustrations of the rnle are given. The learned author then says: “The true distinction, taken by Chief Baron Pollock in a well-considered case, and adverted to with approval in other cases, was thus expressed: ‘Wheji an excavation is made adjoining to a public way, so that a person walking upon it might, by making a false step, or being affected with sudden giddiness, or, in case of a horse or carriage way, might, by :the sudden starting of a horse, be thrown into the excavation, it is reasonable that the person making such excavation should be liable for the consequences; but, when the excavation is made at some distance from the way, and tire person falling into it would be a trespasser upon the defendant’s land before he reached it, .the ease seems to us to be different. We do not see where the liability is to stop. A man getting off the road on a dark night, and losing his way, may'wander to any extent and, if the question be for the jury, no pian can tell whether he is liable, for the consequences of his act upon his own land or not. We think the proper and true test of legal liability is whether-the excavation be substantially adjoining the way; and it would be very dangerous, if it were otherwise — if in every case' it were left as a fact to the jury whether the excavation were sufficiently near the highway to be dangerous.’ ” In the case before us the plaintiff’s own testimony shows that he deliberately and purposely left the — 374 — highway fox- the- purpose of walking across the lot to take his uncle out of sight of the street. He was willfully using the defendant’s property for his private purposes without any invitation from’ the defendant, and without its consent. So far as he is concerned, it is iinanateiial how far the vat was from the .highway. He was- not a traveler on the highway at all when he fell into the vat. He was then a trespasser on appellant’s lot, having intentionally left the highway for purposes of his own. The case would not be essentially different if there had been no highway adjoining the lot. It is insisted, however, that the owner of this uninclosed lot. in a city ought to know that trespassers are liable to come upon it, and that a vat'Of boiling water is a thing so dangerous that it is negligence in the owner not to guard it as to one who falls into it in the dark. The general rule is that the owner of private grounds is under no obligation to keep them safe for' the benefit of intruders wlho -come upon them for .their own pur poses however^ innocent the purpose may be.- 1 Thompson on Negligence/ sections 945, 946. The exceptions to the rule are where the owner of the property expressly or impliedly invites the use of it, or so maintains it as to make it what is sometimes called’ an attractive nuisance, especially in the case of’ children and animals. See, also, Bishop on Non-Contract Law, sections 845-853; Bransom’s Admr. v. Labrot, 81 Ky. 638, 5 Ky. Law Rep. 827; 50 Am. Rep. 193, and cases cited. The case before us does not fall within either of these exceptions-. In the case of Union Stock Yards Company v. Rourke, 10 Ill. App. 474, one who was crossing another’s grounds in the city of Chicago without — 375 — authority fell into a deep pool of water over which a crust had formed resembling dry land, and was drowned. The owner was held not liable, on the ground that he was under no obligation to keep the place safe as to intruders. In Stone v. Jackson, 32 Eng. Law & Eq. 349, a woman crossing the defendant’s unfenced ground in order to make a short cut and avoid an angle in the street, as many persons were accustomed to do, fell into an unguarded vault which was open. This was in a city, and the vault was perhaps as dangerous as the vat in this case. The owner was held not liable. In Hounsell v. Smyth, 7 C. B. (N. S.) 731, a person was crossing an open tract of land lying between two highways, and fell into an open and unfenced mine. The court held that persons crossing grounds with the owner’s permission mast take the permission “with its concomitant conditions, and it may be peril.’’ In Benson v. Baltimore Traction Company (Mel.) 26 Atl. 973, 20 L. R. A. 714, 30 Am. St. Rep. 436, a class of students were given permission upon request to inspect a power house. One of them while there fell into an uncovered vat of, boiling water in a dark place where he could not see. It was held that he could not recover. In a note to this ease a number of authorities are referred to. The general rule on the subject is thus admirably stated by Chief Justice Bigelow in Sweeney v. Old Colony, etc., R. R. Co. (Mass.) 87 Am. Dec. 644: “All the cases in the books, in which a party is sought to be charged on the ground that he has caused a way or other place to be incumbered, or suffered it to be in a dangerous condition, whereby accident and injury have been occasioned to another, turn on the principle that negligence consists in doing or omitting — 376 — to do an act by which a legal duty or obligation tas been omitted. Ttns a trespasser, who comes on tte land of another without right, cannot maintain an action, if he runs against a barrier or falls into an excavation there situated. The owner of the land is not bound to protect or provide safeguards for wrongdoers. So a licensee, who enters on premises by permission only, without any enticement, allure.'ment, or inducement being held out to him by the owner or occupant, cannot recover damages for injuries caused by obstructions or pitfalls. He goes there at his own risk, and enjoys the license subject to its concomitant perils. No duty is imposed by law on the owner or occupant to keep his premises in a suitable condition for those who come there solely for their own convenience or pleasure, and who are not either expressly invited to enter or induced to come upon them by the purpose for which the premises are appropriated and occupied, or by some preparation or adaption of the place for use by customers or passengers, which might naturally and reasonably lead them to suppose that they might properly and safely enter thereon.” In Brinkley Car Works v. Cooper (Ark.) 67 S. W. 752, 57 L. R. A. 724, the defendant had upon its premises a pool of hot water. A child six years old walked into it, and was burned. It was held that there could be no recovery; the company having no notice that children were in the habit of playing there. There is also a note to this case citing a number of other authorities. In a note to Woodward v. Miller, 100 Am. St. Rep. 200, the rule of law on the subject is thus stated by Judge Freeman: “In order to maintain an action for an injury due to negligence, — 377 — there must-'be shown to exist some obligation or duty toward the plaintiff which the defendant has left undischarged or unfilled. (Citing authorities.) Hence it is that the owner of dangerous premises is not answerable for injuries suffered by a trespasser or mere licensee who. comes thereon without invitation, allurement, or right. To such persons he owes only the duty to do them no wanton or willful harm, This seems a harsh rule, which justifies a man, legally, in keeping his property in a needlessly dangerous condition; but it has the support of the authorities., without, perhaps, exception.” Any number of authorities may be cited to sustain this conclusion. The tendency of the later cases is rather to limit the exceptions to the rule than to extend it. See Ryan v. Towar (Mich.) 87 N. W. 644, 55 L. R. A. 310, 92 Am. St. Rep. 481; Uthermohlen v. Bogg’s Run Company( W. Va.) 40 S. E. 410, 55 L. R. A. 911, 88 Am. St. Rep. 884, and cases cited. The principle was recognized by this court in Reeves v. French, 45 S. W. 771, 46 S. W. 217, 20 Ky. Law Rep. 220; Schauf’s Adm’r v. City of Paducah, 106 Ky. 228, 20 Ky. Law Rep. 1796; 50 S. W. 42, 90 Am. St. Rep. 220; and Illinois Central Railroad Company v. Waldrop, 72 S. W. 1116, 24 Ky. Law Rep. 2127. Pences are passing out of use in all of our cities-There are on many vacant lots excavations made for buildings and other purposes — wells-, cisters, vault pits, and the like. The owner of vacant property is not required to fence it, and every one who in the dark goes upon a vacant lot without permission takes the risk of such things. A deep excavation for the foundation of a house or a well or cistern would be practically just as dangerous as the vat in question; — 378 — but the owner of a city lot, who had on it a well, cistern, or privy vault with a defective'cover, would not be held' liable to a stranger who went upon the lot in the night to answer a call of nature, and while there was hurt by reason of the defective covering of the hole, or for want of coverings. The reason for the rule is that the owner owes him no duty. The person who goes upon a vacant lot at night is bound to know that there may be danger in so going upon land that he is not acquainted with, and he takes the risk of what he finds on it. The vat was an essential part of the laundry. It was used to cool the pipes and was near by it. It was no more an instrument of danger than unfenced machinery, or a number of other things which in the cases referred to were held not to make the owner liable. Judgment affirmed.