Powers v. Harlow

• Decision Date: 30 April 1884
• Citation: 19 N.W. 257,53 Mich. 507
• Court: Michigan Supreme Court
• Parties: POWERS v. HARLOW.

19 N.W. 257

53 Mich. 507

POWERS v. HARLOW.

Supreme Court of Michigan

April 30, 1884

The leasing of land, inaccessible, except by passing over the lessor's land gives the lessee a right of way over the land of necessity, and the lessee may define the line of passage; but, if he does not do so, the tenant may, and when it is once defined both parties will be bound by it.

Where neither party defined the line of passage, and the tenant passed across the land as convenient, held, that the facts made out a practical agreement between the parties that the tenant should be deemed within the limits of his right as long as he did not deviate from the general direction.

A license to pass across a lessor's premises to get to leased land, which is coupled with an interest, is not revocable while the lease is in force.

A licensor who invites others upon his premises for his own interest, assumes towards those accepting the invitation the duty to warn them of any danger in coming of which he knows or ought to know, and of which they are not aware.

Where the tenant is a laboring man, accustomed to being assisted by his family in his manual labor, a license to pass across his lessor's land, in going to and coming from his work on the leased land, is a license to his family also.

Where those who are chargeable with a duty towards children leave exposed to their observation articles tempting to them, and which they, in their immature judgment, might naturally suppose they were at liberty to handle, they should expect that liberty to be taken; and when under these circumstances a child is injured, the parent, having no notice of the danger, is not chargeable with fault for not suspecting it and warning his child away, nor is the child blameworthy for an injury resulting from acting upon his instincts, and from the negligence of a defendant's servant.

Error to Marquette.

W.P. Healy, for plaintiff.

F.O. Clark, for defendant.

COOLEY C.J.

Action on the case to recover damagesfor an injury alleged to have been caused by the negligence of defendant's servant. The material facts are the following:

For many years the defendant has been owner of a farm near the city of Marquette, which has been under the general management of one Hodgson, his foreman or superintendent, who has leased small parcels to laboring men for cultivation. Upon these parcels potatoes and other vegetables have been raised, and the ground has been cultivated by the lessees with the assistance of their wives and children. In the year 1883 the farm was divided by a rail fence into two fields, in one of which there were some 10 or 12 parcels of the leased land, and in the other 30. The farm was formerly covered with timber, and many stumps still remain which the superintendent, when he finds them in the way of cultivation, has been accustomed to remove by the use of dynamite. The dynamite is put up by the manufacturers in boxes made of rough boards, in which it is covered and surrounded with sawdust, and in the same box, but put up by themselves in a small tin box, are placed the exploders. These exploders are shaped like ordinary percussion caps, but are very much larger, and they are partially filled with a fulminate, which is exceedingly sensitive, and more powerful as well as more explosive than dynamite. It is liable to explode at any time if accidently struck against a stone or any hard metal, or if picked with a pin or knife, or touched with fire. A piece of dynamite is exploded by placing one of the exploders at the end, with a fuse attached, which is ignited, and stumps are blown in pieces by their use. In the spring of 1883, one of the wood boxes containing dynamite and exploders was deposited under what is called by some of the witnesses a temporary shed on the farm, where it had been placed by Hodgson. The shed was made by placing a piece of scantling across the top of a stump, and sloping planks from this piece to the ground. The planks did not form a perfect inclosure, and it was in evidence that persons had sometimes gone under the planks to escape showers. The father of the plaintiff had done this a few days before the injury and he had seen the box there partly uncovered, with sawdust in it, but he did not know what else. There were screws in the top boards of the box to fasten them down, and these were screwed in and out with the fingers. The word "powder" was written conspicuously upon the box, but plaintiff and his father could not read, and had not been told that anything dangerous was stored there. The shed was distant from any public highway. A farm road, which was used by defendant and his lessees, ran from the direction of the city towards the leased parcels, but without reaching any of them, and in passing from its terminus to the several parcels one would pass by the shed, but how near to it would depend upon the parcel to which he was going, One parcel was leased by the plaintiff's father, and this was one of the nearest to the road and to the shed. He had leased it for some years; it contained a little less than an acre, and in 1883 he was paying rent for it at the rate of $16 an acre, and had it planted to potatoes. In going to their several holdings the lessees crossed each other's parcels as was found convenient, and also passed over land plowed by defendant for his own use. How near the plaintiff's father would go to the shed in passing from the farm road in a straight line to his own holding, is left uncertain on the evidence; it might be perhaps ten rods, or it might be less than one. There was no inclosure about the shed, and nothing to warn people away from it except the word "powder" upon the box. The superintendent went to the box for dynamite and exploder, as he had occasion to use them. The evidence all tended to show that the handling of the exploders by persons who were ignorant of their nature, or were careless, or under circumstances rendering them liable to accidental concussion, would be exceedingly hazardous.

On July 4, 1883, the plaintiff's father was at work among his potatoes, and plaintiff, who was then eight years and four months old, went with a brother two years older to take the father his dinner. When they had delivered the dinner to him they worked for an hour or so destroying potato bugs, and then moved about at pleasure for an hour or so longer in the vicinity of their father's work. The plaintiff looked into the shed and saw the box there, partly uncovered, and from the sawdust took out one of the exploders. He was aware of no danger from handling it, and thought no harm in taking it from the open box. After a little he picked up a small stone, as large as his fist, and holding the exploder upon another stone, which he describes as being the size of a spittoon, he struck it with the stone in one hand while holding it in the other, and with the third blow it exploded, breaking the stone on which it was held, and tearing from his left hand the thumb and one finger. For this injury the suit was instituted.

The negligence charged against the defendant was the keeping of the exploders thus exposed, and in dangerous proximity to where persons were accustomed to pass and repass, and where children like the plaintiff, with childish instinct, and without any knowledge of the great peril to which they were exposed, might go to the open box and take and handle them. When the case was submitted to the jury the circuit judge instructed them to return a verdict for the defendant. This he did upon the ground that it is the duty of parents to take care of their children, and to see that they do not commit trespass; and if they do not do that, but suffer the children to wander away upon other people's property, the children go there at their own risk, and the negligence is contributory on the part of the parents in allowing them to wander where they have no right. And this negligence of the parents is, for the purposes of legal remedy, imputable to the children themselves. The instruction was probably given in reliance upon Hargreaves v. Deacon, 25 Mich. 2, which was such a case as the instruction supposed.

Counsel for the defendant, with commendable industry, has collected and brought to our attention a large list of similar cases in which the same principle has been laid down and applied, and he insists that they are in their facts analogous to the present case. The children, it is said, were trespassers in going in or to the shed; and even if it could be held that they were licensed to go where they did, the result must be the same, since a license to enter or pass over an estate will not create a duty or impose an obligation on the part of the owner to provide against accidental injuries. Ill Cent. R. Co. v. Godfrey, 71 Ill. 506. This is the point upon which the case must turn; and it therefore becomes necessary to...