Hannan v. Ehrlich
| Decision Date | 22 March 1921 |
| Docket Number | 16598 |
| Citation | 102 Ohio St. 176,131 N.E. 504 |
| Parties | Hannan, Admr., v. Ehrlich. |
| Court | Ohio Supreme Court |
Negligence - Child killed playing in sand bank - Attractive nuisances - Trespasser or licensee - Pleading - Express or implied invitation - Inducement or allurement - Actionable negligence exists, when - Duty of licensor to licensee - Degree of care toward infants - Municipal ordinance - Excavations to be enclosed, when - Scope and purpose of ordinance.
1. In a petition claiming damages for negligence an allegation that a sand bank is operated upon a portion of defendant's premises and that the children of the neighborhood were accustomed to use said premises for the purposes of a playground and that defendant "permitted, allowed and acquiesced" in such use, will not be construed as an invitation either express or implied.
2. The words "permitted, allowed and acquiesced" imply no inducement, allurement or enticement, and should be construed as creating the relation of licensor and licensee.
3. Actionable negligence exists only where the one whose act causes or occasions the injury owes to the injured person a duty created either by contract or by operation of law, which he has failed to discharge.
4. A licensee takes his license subject to its attendant perils and risks, and the licensor owes him no duty except to refrain from wantonly or wilfully injuring him and to exercise ordinary care after discovering him to be in peril he should not be exposed to hidden dangers, pitfalls or obstructions.
5. The foregoing rule is not altered by the fact that the injured person is a child of tender years.
6. Greater care and caution should he exercised to prevent injuries to children upon premises where dangerous active operations are carried on than upon premises containing a visibly dangerous statical condition.
7. A city ordinance requiring a cellar, cistern, well, or other excavation, to be enclosed by a substantial fence or railing and granting not exceeding two feet in width of the adjacent alley for such purpose, is for the protection of persons lawfully traveling along such adjacent street and is not intended to apply to excavations not immediately adjacent to a street or alley.
Plaintiff's decedent was a boy eight years of age, residing with his parents in the city of Ironton. For several years prior to October 6, 1918, the defendant owned and operated a sand pit in the populous part of Ironton, but it appears from the allegations of the petition that the premises upon which the sand pit is located did not join any street, alley or public way, or if it did so join it is quite clear that the excavation of the pit did not extend to any such traveled way. There was an alley leading into the premises, which was generally used by persons going to, from and across the plot of land where the pit was located, but it does not appear from the allegations of the petition that the alley extended into the excavation. The sand pit had been excavated to a great depth, being at some points 35 or 40 feet, and the banks of the pit were left perpendicular and at times overhanging in places, the banks being subject to constant change by reason of the taking out of sand.
The petition also alleges that said banks did sometimes cave in and dirt and sand did sometimes fall therefrom.
The petition further alleges that children were accustomed to enter the premises and use the same as a playground; that the defendant knew or by the exercise of ordinary care should have known of such use and the condition of such excavation and the walls thereof, and "permitted, allowed and acquiesced in the use of said sand bank and grounds by said children in making a playground upon said premises."
The petition further alleges that on the 6th day of October 1918, the decedent, with other children, was playing in the pit and while so playing the sand and soil fell upon decedent causing his death.
The petition further alleges that in 1907 the city passed an ordinance, which has ever since been in full force providing:
The petition further alleges "that said parcel of land was open, unguarded, unfenced, unprotected and was not enclosed by any fence or rail at all; that it was out in the commons and was accessible to any and all persons, and particularly to the children of said neighborhood," etc.
The petition contains many other allegations, but the foregoing will be found to be the pertinent ones material to the inquiry.
The petition was demurred to and the demurrer was sustained by the court of common pleas, and, the plaintiff not desiring to further plead, the petition was dismissed. Thereupon error was prosecuted to the court of appeals and the court of appeals affirmed the judgment.
Mr. A. R. Johnson; Mr. Dan C. Jones and Mr.A. R. Johnson, Jr., for plaintiff in error.
Mr. E. E. Corn and Messrs. Andrews & Irish, for defendant in error.
Is the petition obnoxious to a demurrer?
There is no claim in the petition of wilful wrongdoing, but if a good cause of action is stated at all it is on the ground of ordinary negligence. There is no liability for negligence unless there was a duty to use due care. It will, therefore, be our first inquiry to determine what duty, if any, the defendant owed to the plaintiff in this case. We will first ascertain what effect should be given to the allegations of the petition relative to the provisions of the city ordinance.
The effect of the violation of an ordinance has been recently settled, so far as this court is concerned, in the case of Schell v. DuBois, 94 Ohio St. 93, the second paragraph of the syllabus reading as follows: "The violation of a municipal ordinance passed in the proper exercise of the police power in the interest of the public safety, and not in conflict with general laws, is negligence per se, and where such act of negligence by a defendant is the direct and proximate cause of an injury, not directly contributed to by the want of due care on the part of the injured person, the defendant is liable."
If, therefore, the defendant violated the municipal ordinance, and if such violation was the direct and proximate cause of the injury, the petition must be held to state a cause of action.
We will first determine whether the defendant has violated the ordinance. This question must necessarily depend upon a construction of the ordinance, and its construction depends upon the purpose and intent of the city council in adopting it. It is apparent that its provisions are intended to cover excavations adjacent to a street or alley, because it is permissible to use "not exceeding,, two feet in width of the adjacent street or alley.
It will further be observed that the ordinance calls for a "substantial fence or railing." Since these words are employed in the disjunctive, it is presumed that either a fence or railing would be a compliance with the ordinance, provided the same is of a substantial nature.
It is apparent that the purpose of the ordinance was to safeguard such excavation by preventing pedestrians or persons lawfully passing along a public street or alley from falling into such excavation. There is nothing about the ordinance to indicate that its purpose was to absolutely exclude from the premises all persons not having any business upon the premises. If such were the purpose, much more definite language would have been employed than the phrase "a substantial fence or railing."
It is apparent that no fence or railing would have served the purpose of preventing this eight-year-old boy from entering the premises, unless it should be "pig tight, horse high and bull strong." It was certainly not the intention of the city council in the use of the language of the ordinance to require a fence of such character as would absolutely prevent an active energetic boy of eight years from penetrating it.
The petition further alleges that the defendant's land extends from the "Old Hecla Pike" up the river a distance of approximately one square, and lies immediately back of or towards the hill from the alley-way, and that the tract of land consists of one acre more or less; "that it was out in the commons," etc.
Inasmuch as the excavation was out in the commons and back from the traveled way, we are of the opinion that the ordinance above quoted has not been violated.
Authority is found for the foregoing views concerning the ordinance, and no authority to the contrary has been pointed out.
In the case of Moran v. Pullman Palace Car Co., 134 Mo. 641, the syllabus reads in part as follows: "Ordinances requiring depressions and excavations within a city which are below the natural or artificial grades of the surrounding or adjacent streets to be filled or fenced, and prescribing penalties for failure to comply with their requirements, apply only to places that are in such close proximity to the highway as to endanger the safety of travelers thereon."
After all, the Ironton city ordinance is only declaratory of the common law, and aside from the provisions of the ordinance we conceive it to be the duty of property owners having an...
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