Coburn v. Vill. of Swanton

Decision Date16 March 1920
Docket NumberNo. 204.,204.
PartiesCOBURN v. VILLAGE OF SWANTON.
CourtVermont Supreme Court

Exceptions from Franklin County Court; Stanley C. Wilson, Judge.

Action by Irving E. Coburn, by Henry Coburn, his next friend, against the Village of Swanton. Demurrer to the declaration was sustained, and the plaintiff excepts. Judgment in so far as it dismissed the action reversed, otherwise affirmed, and cause remanded with leave to plaintiff to apply for leave to amend.

Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ.

D. W. Steele, of Highgate, and Elmer Johnson, of St. Albans, for plaintiff.

F. L. Webster aud D. G. Furman, both of Swanton, for defendant.

SLACK, J. This is action of tort to recover for personal injuries sustained by Irving E. Coburn, a boy 12 years of age.

The case is here on exceptions to the action of the trial court in sustaining the demurrer to the declaration.

The allegations in the declaration, material to our inquiry, are, in substance: That the defendant, at the time of the accident, and for a long time before, owned and operated an electric power plant where it generated, and distributed to the public, electricity; that the plant consisted of a power house wherein were located a large dynamo, machinery, and other appliances, for use in that business; that the public had been admitted to the plant and power house during all this time, without restriction, for the purpose of viewing the place, examining the machinery, etc., with the knowledge and consent of the defendant; that the plant was operated continuously, night and day, and was in charge, principally, of three men, only one of whom, as a rule, was on duty at a time, and when alone such employe had full charge of the plant. Then follows a description of the location and purpose of the dynamo and transmission wires, and a description of the defect which it is alleged caused the injury, viz., defective insulation of an unprotected transmission wire, and an allegation that the defendant knew or ought to have known of this condition, and that the plaintiff had no knowledge thereof. It is then alleged that at the time of the injury one Barr, who had been in the employ of the defendant for several years, was working the night shift, the period of which kept him on duty the following morning until after his breakfast hour; that while on the night shift Barr worked alone, was the only employe of the defendant at the plant, and had full charge and supervision thereof, with full authority from the defendant to invite and admit people, including the plaintiff, to the power house, and to exclude them therefrom; that about three months before the accident Barr hired the plaintiff to carry Barr's breakfast to him, each morning while he was working the night shift, and deliver the same within the power house; that pursuant to such engagement, and upon the special request and invitation of Barr, the plaintiff carried Barr's breakfast each morning from the time the plaintiff was so engaged down to and including the morning of his injury and delivered it within the power house according to the request and direction of Barr; that Barr's practice of inviting the plaintiff to the premises and within the power house as aforesaid was known, or ought to have been known, to the defendant, and was permitted and approved of by him; that on the day of the injury, the plaintiff, pursuant to his engagement with Barr and upon the latter's invitation and request, carried Barr's breakfast to and within the power house and left it at the back of the room therein, where he had been engaged to leave it, and while leaving the room by the route by which he entered, which was the only available one, he received the injuries complained of.

It is a well-known principle that before liability attaches, for negligence, a duty must arise—a duty on the part of the party charged toward the party injured. Bottum's Adm'r v. Hawks, 84 Vt. 370, 79 Atl. 858, 35 L. R. A. (N. S.) 440, Ann. Cas. 1913A, 1025. And a declaration for personal injuries caused by negligence, to meet the test of a demurrer, must show a legal duty or obligation of the defendant toward the person injured, existing at the time and place of the injury, which the defendant failed to perforin or fulfill, and that the injury was caused by such failure. Brothers' Adm'r v. Rutland Railroad Co., 71 Vt. 48, 42 Atl. 980; Devino v. Central Vt. Ry. Co., 63 Vt. 98, 20 Atl. 953.

Does the declaration before us meet these requirements?

The plaintiff insists, in the first place, that the power house was a nuisance and that the defendant therefore is liable, regardless of the question of negligence. Whether so or not, it is enough to say that it does not so appear from the declaration.

The main question is whether it appears from the declaration that the plaintiff was, at the time of the injury, at the place where the accident occurred by the invitation of the defendant, express or implied— whether he was there as an invitee, or merely as a licensee. If the allegations show that he stood in the position of the former, the declaration is sufficient; otherwise it is not. Because, "as a general rule," says Thompson in his Commentaries on the Law of Negligence (volume 1, p. 946), "the owner of private grounds is under no obligation to keep them in a safe condition for the benefit of trespassers, intruders, idlers, bare licensees, or others who go upon them, not by invitation, express or implied, but for their own purposes, their pleasure, or to gratify their curiosity, however innocent or laudable their purpose may be." 20 R. C. L. 57, and many cases there cited. And the rule applies with equal force to children and adults. Bottum's Adm'r v. Hawks, supra.

It appears from the declaration that the plaintiff was injured by coming in contact with a defective electric light and power wire while on the defendant's premises for the sole purpose of carrying breakfast to one of defendant's employes.

In Muench v. Heinemann, 119 Wis. 441, 96 N. W. 800, it was held that a milkman who, according to his custom, went to the fourth floor of a factory to leave milk for the personal use of the defendant's employes, could not recover for injuries sustained because of a defect, negligently suffered to exist, in the elevator; nor did the fact that he was directed by the defendant to use the particular elevator enlarge his rights.

In Fitzpatrick v. Cumberland Glass Mfg. Co., 61 N. J. Law, 378, 39 Atl. 675, the plaintiff, a boy 12 years old, was injured while on defendant's premises by the fall of a gate, negligently maintained by the defendant. His father was an employe of the defendant, and the boy, with permission of the defendant, was accustomed to carry his father's dinner to him, and was doing so at the time of the injury. Held that there was no liability.

In Gibson v. Szlepienski, 37 Ill. App. 601, it was held that the defendant was not liable for the death of a person who fell down an unguarded elevator shaft while carrying dinner to his son who was an employe of the defendant, on the premises where the accident occurred.

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