Bottom's Adm'r v. Hawks

Decision Date05 May 1911
Citation79 A. 858,84 Vt. 370
CourtVermont Supreme Court

Haselton, J., dissenting.

Exceptions from Bennington County Court; Fred M. Butler, Judge.

Action by Arthur F. Bottum's administrator against William E. Hawks. Judgment for defendant, and plaintiff brings exceptions. Affirmed and remanded.

Argued before HOWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Holden & Healy and F. C. Archibald, for plaintiff.

Batchelder & Bates and T. W. Maloney, for defendant.

POWERS, J. The plaintiff excepts to the judgment of the county court sustaining general demurrers to his declaration and the two counts thereof. There is no essential difference between these counts, and, so far as need be stated, the following facts are alleged:

The plaintiff's intestate was a five year old boy. The defendant owned a mill in the village of Bennington and conducted water to it through an underground conduit. In this conduit and on the premises of certain third persons, he owned and maintained an open bulkhead about three feet in diameter, built substantially flush with the surrounding surface of the ground, save for a curb of 10-inch boards. This bulkhead was near one of the much-frequented streets of the village, and close by on the same premises was a building in which a private school, attended by many children of the intestate's age, was maintained. There was a path near the bulkhead which was, and had been for a long time, habitually used by the intestate and other children, both from the private school and the public school of the village. The grounds around about were much frequented by all these children, who resorted thereto for amusement. There were no barriers either between the street and the bulkhead, or between the grounds of the private school and the bulkhead. The structure was attractive to the intestate and the other children, and they were thereby frequently led to play about it. All of these things were known to and permitted by the defendant and the owners of the land. On the day of the accident, the intestate, with other children of tender years from the schools mentioned, was passing along the path, and, being attracted by the bulkhead, stopped to play about it, and, while so at play, the intestate fell into the water and was swept into the conduit and drowned.

All will agree that this open, unguarded bulkhead, located as it was, was a serious menace to the children of the community; that the fact that it was so likely to cause accidents of such dire consequences laid a heavy moral obligation upon the owner so to cover or guard it as to make impossible such a disaster as befell the intestate. But, though suffering it to remain unguarded was an act of deliberate carelessness, it does not necessarily follow that this action will lie. "Negligence" and "actionable negligence" are distinguishable terms; carelessness does not always involve liability. Before liability attaches, a duty must arise—a duty on the part of the party charged toward the party injured. So our discussion begins with the question: Did the defendant owe the intestate a duty, and, if so, was it the duty of active care? If the answer to both branches of this question is affirmative, then, so far as the main question is concerned, liability is stated in this declaration.

We may assume without special consideration that the defendant owed the intestate the duty of protection from injury caused by force negligently brought to bear upon him. This is generally conceded and is the rule of our own cases (Lindsay, Adm'r, v. C. P. R. R. Co., 68 Vt. 556, 35 Atl. 513, and Seymour v. C. V. R. R. Co., 69 Vt. 555, 38 Atl. 236), wherein the parties were injured, not by reason of the condition of the premises, but by the negligence of the defendants arising after they had entered upon the defendants' properties. But, on account of this distinction, these cases are not authorities here. As said by (now) Mr. Justice Lurton in Felton v. Aubrey, 74 Fed. 350, 20 C. C. A. 430: "It seems to us that many of the American cases which we have cited fail to draw the proper distinction between the liability of an owner of premises to persons who sustain injuries as a result of the mere condition of the premises, and those who come to harm by reason of the subsequent conduct of the licensor inconsistent with the safety of persons permitted to go upon the premises and whom he was bound to anticipate might avail themselves of his license. This seems to be sharply emphasized in the case of Corby v. Hill, 4 C. B. N. S. 556, and is a distinction which should not be overlooked."

Did the defendant owe the intestate the duty of active care? It is to be observed that this is not the case of one who digs a pit on his own land but so near the highway that a traveler by inadvertence steps off into it. like Barnes v. Ward, 67 E. C. L. 39 and Sanders v. Reister, 1 Dak. 151, 46 N. W. 680; nor is tins the case of injuries intentionally inflicted, like the spring gun case (Bird v. Holbrook, 13 E. C. D. 667), and the baited trap case (Townsend v. Wathen, 9 East, 277); nor, on the other hand, is it the case of injuries arising from natural conditions. This declaration is intended to and does predicate the right to recover squarely upon the doctrine sometimes called the attractive nuisance doctrine—sometimes the doctrine of the turntable cases. It would be impossible to select from the books a subject on which there, is a wider divergence of judicial opinion than the one here involved. There is much to be said on both sides of the question. Indeed, so much has already been said that we cannot hope to add anything new to the discussion.

As a general rule, an owner is under no legal obligation to trespassers or licensees to keep his premises or property in proper condition; and this rule applies with equal force to children and adults. This last statement, it must be admitted, would not in all jurisdictions go unchallenged.

But the authorities generally agree to it, even those which accept the doctrine of the turntable cases, and we feel safe in asserting that, in the absence of the elements of "attractive" dangers and knowledge, actual or implied, of the presence of the child, the tender years of a technical trespasser or licensee will not raise a legal duty on the part of the landowner where none otherwise exists.

Two of our own cases should be referred to in this connection. Kennedy v. Morgan, 57 Vt. 46, and Fay v. Kent, 55 Vt. 557. In the former case it was sought to hold one who was engaged in tearing down a schoolhouse situate in a public park for injuries negligently inflicted on a small boy who was watching the work. In the latter case, it was alleged that the defendant had dug a pit in the highway near a schoolhouse and negligently left the excavation with an overhanging bank; that a small boy walked into it and was injured by the bank caving onto him. Liability was denied in both cases—a result which could not have been reached if infancy alone creates a duty. If the added elements of "attractiveness" and knowledge actual or implied, of the injured child's presence, both of which are alleged to exist in the case in hand, are sufficient to raise a duty where none before existed, it must be upon some legal principle, discovery of which ought to be comparatively easy. Yet it is a matter of much significance that, though this principle has been diligently sought, the courts which accept the doctrine reach widely divergent conclusions regarding it. Some put it on the ground of implied intention, relying on the spring gun case and the trap case, hereinbefore referred to. These, apparently, reason along a line analagous to the rule familiar in criminal law that one will be held to have intended the natural consequences of his acts. The federal Supreme Court gives countenance to this view for it cites Bird v. Holbrook, in Sioux City & Pacific R. R. v. Stout, 84 U. S. 657. 21 L. Ed. 745, and Townsend v. Wathen, in Union Pacific R. R. Co. v. McDonald, 152 U. S. 262, 14 Sup. Ct. 619, 38 L. Ed. 434. But the ground is obviously fictitious, and the courts which adopt it destroy the fundamental distinction between negligent and intentional injuries. It was said by the late Justice Peckham, when he delivered the opinion in Walsh v. Fitchburgh R. R. Co., 145 N. Y. 301, 39 N. E. 1068, 27 L. R. A. 724, 45 Am. St. Rep. 615, that the difference between Bird v. Holbrook and a turntable case "is so plain as to require no discussion." "The failure to observe this distinction," says Judge Denman in Dobbins v. Misso., etc., Ry. Co., 91 Tex. 60, 41 S. W. 62, 38 L. R. A. 573, 66 Am. St. Rep. 856, "has led to much confusion."

Some say the rule is but an application of the maxim sic utere, etc. But the maxim applies to all alike and makes no distinction in favor of children. It applies only to results which exteud beyond the limits of the owner's property. Ratte v. Dawson, 50 Minn. 450, 52 N. W. 965; Sav. Flor. & West. Ry. Co. v. Beavers, 113 Ga. 398, 39 S. E. 82, 54 L. R. A. 320; Walker v. Potomac, F. & P. R. R. Co., 105 Va. 226, 53 S. E. 113, 4 L. R. A. (N. S.) 80, 115 Am. St. Rep. 871, 8 Am. & Eng. Ann. Cas. 862. The maxim applies for the protection of legal rights, only. It does not apply to one without right. In White v. Twitchell, 25 Vt. 620, 60 Am. Dec. 294, the plaintiff had appropriated the defendant's pole and used it in making a staging. The defendant, without notice to the plaintiff, went and took it away. Afterwards, the plaintiff went upon the staging, and, by reason of the removal of the pole or bar, the staging fell and the plaintiff was injured. "Sic utere tuo does not apply," says Judge Bennett, "for the reason that the plaintiff had no right in the use of the bar, to injure." Others predicate the doctrine on the ground of implied invitation, saying with Mr. Justice Young in Keffe v. M. & St. P. R. R. Co., 21 Minn. 207, 18 Am. Rep....

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