Ratte v. Dawson

Vanderburgh, J. The evidence failed to make a case in behalf of the plaintiff, and the action was rightly dismissed. The defendant is the owner of "several unoccupied residence lots in the city of St. Paul, on which divers persons with his consent, express or implied, before the accident or injury complained of here, had entered and made excavations for building sand. The premises were open and unfenced, and the pits or excavations made from time to time on the land were unprotected by railing or otherwise. Children residing in the neighborhood were accustomed to visit the place and play there, but it does not appear that the defendant’s attention had been called to this fact, though he knew that the excavation for sand had been going on for some considerable time. On Sunday afternoon, September 14, 1890, plaintiff’s intestate, an infant of the age of three years, who was in charge of an older sister, about fifteen years of age, and in company with two other sisters, was taken to the premises in question for recreation and pleasure. While amusing themselves there, chiefly in looking for “carnelians,” the infant, who was suffered to go into or near one of the excavations, was knocked down by falling earth from an overhanging embankment, and killed. The excavations were sufficiently removed from the street so that [453] they were not dangerous to persons passing on the sidewalk. The parties were clearly trespassers. They were not on the premises by plaintiff’s invitation, or for any lawful purpose. ■ He owed them no duty to fence or guard his premises, to prevent them from entering and exposing themselves to danger. There was nothing in the nature of the work going on upon the land, nor anything kept or used thereon, which can be said to have been especially inviting or attractive to children, or calculated to entrap them into danger, so as to bring the case within the rule established in the “Turntable Cases.” Mc-Alpin v. Powell, 70 N. Y. 133, 134. (Opinion published 53 N. W. Hep. 965.) There is nothing to take the case out of the general rule that, where the owner of land, in the exercise of his lawful dominion over it, makes an excavation thereon, so far from the street that a person coming onto the land without his invitation, and falling into it, would be a trespasser before reaching it, such owner is not liable to an action for the injury sustained. Gillespie v. McGowan, 100 Pa. St. 147; McAlpin v. Powell, supra; Severy v. Nickerson, 120 Mass. 306; Add. Torts, §§ 621, 622; Bigelow, Torts, 699. The young girl who. had charge of the deceased was sui juris, and responsible for the care of the latter. It is sufficient, however, to base the decision in the case upon the absence of negligence on the part of the defendant. The maxim, sic utere tuo, etc., has no application to such a case. It refers to acts the effect of which extends beyond the limits of the property, and to neighbors who do not interfere with it or enter upon it. If the rule were otherwise, a landowner could not sink a well or dig a ditch or open a stone quarry on his own land, except at the risk of being made liable for consequential daiñages, which would unreasonably restrict its enjoyment. Gillespie v. McGowan, supra. Order affirmed.