Cusick v. Adams

• Citation: 115 N.Y. 55,21 N.E. 673
• Parties: CUSICK v. ADAMS.
• Decision Date: 04 June 1889
• Court: New York Court of Appeals

115 N.Y. 55

21 N.E. 673

CUSICK

v.ADAMS.¹

Court of Appeals of New York.

June 4, 1889.

Appeal from supreme Court, general term, Third department.

N. C. Moak, for appellant.

P. D. Niver, for respondent.

GRAY, J.

The plaintiff recovered damages against the defendant for injuries resulting from a fall through a hole in a bridge, which the defendant had some years previously constructed over the Mohawk river, to connect an island, belonging to him with the city of Cohoes. The plaintiff was crossing the bridge, in order to see some shooting-match upon the island. He sustained no relations with the defendant, and it is not pretended that the defendant had anything to do with the objects which induced the plaintiff to cross the bridge. He simply used it for his own convenience and pleasure. The right to recover was sustained at the general term of the supreme court, on the theory that the defendant, by his construction of the bridge and of the approach to it extended the public highway, to all appearance over the bridge, and thus misled the plaintiff to his damage. The proof hardly, in my opinion, warrants any such assumption. The city end of the bridge rested on a vacant piece of land, and not on the highway. But, even granting that the end of the bridge connected with a highway or street, I do not think that circumstance of sufficient importance, by itself, to justify our departure from the well-settled rule in such cases, where the defendant, as the owner of the premises whereon a stranger is injured, is sought to be held for the damage. It is not a question of appearances, nor of what the plaintiff supposed from the appearances, but simply whether the defendant has failed in any duty which he owed to the plaintiff, either, generally, as a member of society, or, particularly, because of any relations subsisting between them. We have here but a question of law upon the proofs. Did the defendant, in constructing the bridge for his own convenience or purposes, thereby assume any active duty of vigilance to see that those who went upon it voluntarily, and by no invitation, express or implied, of his, but simply by his sufferance, were not injured? I do not see how, by my connecting my premises with a public highway, there is imposed any duty upon me to maintain and protect that connection for a public use. The duty of the individual is to use his property in such wise as not to injure his neighbor, and he may not maintain a nuisance upon his premises; but this case does not fall within the application of such rules. The plaintiff was an utter stranger to the defendant. He was not upon the bridge by the defendant's invitation, nor upon any business of his. The evidence does not disclose any reason for his being there at all, with which the defendant was connected or concerned. It does appear that the bridge was used by the public for the purpose of crossing over to the island; but it was not so used by any agreement with the defendant, or with his permission. It was merely by his sufferance that they made use of it.

The principle is now well settled by repeated adjudications in this country and in England that where a person comes upon the premises of another without invitation, but simply as a bare licensee, and the owner of the property passively acquiesces in his coming, if an injury is sustained by reason of a mere defect in the premises the owner is not liable for negligence; for such person has taken all the risk upon himself. The theory of liability in negligence cases is the violation of some legal duty to exercise care. Among the numerous cases, I refer to the following only as necessary to illustrate the general rule of liability. Gautret v. Egerton, L. R. 2 C. P. 371; Hounsell v. Smyth, 7 C. B. (N. S.) 743; Burchell v. Hickisson, 50 Law J. Q. B. 101; Ivay v. Hedges, L. R. 9 Q. B. Div. 80; Sutton v. Railroad Co., 66 N. Y. 243;Larmore v. Iron Co., 101 N. Y. 391, 4 N. E. Rep. 752; Splittorf v. State, 108 N. Y. 205, 15 N. E. Rep. 322; Donahue v. State, 112 N. Y. 142, 19 N. E. Rep. 419; Hargreaves v. Deacon, 25 Mich. 1;Severy v. Nickerson, 120 Mass. 306;Parker v....