Johnson v. Paducah Laundry Co.

• Decision Date: 29 March 1906
• Parties: JOHNSON v. PADUCAH LAUNDRY CO.
• Court: Kentucky Court of Appeals

92 S.W. 330

122 Ky. 369

JOHNSON v. PADUCAH LAUNDRY CO.

Court of Appeals of Kentucky.

March 29, 1906

Appeal from Circuit Court, McCracken County.

"To be officially reported."

Action by George Johnson against the Paducah Laundry Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Hendrick & Miller, for appellant.

Quigley & Mocquot, for appellee.

HOBSON C.J.

The Paducah Laundry Company has at the rear of its laundry, on Fifth and Jefferson streets, in Paducah, a vat, into which the pipes containing the steam from the laundry are run to be condensed; the steam coming from the boiler in the dry room. The vat is 6 feet deep, 3 feet wide, and 12 feet long, and is kept full of water. It is four feet from the sidewalk and is situated in an open lot. On the 18th of January, 1904, George Johnson went to church with his uncle, and, as they went home, his uncle, desiring to step aside on a call of nature they started for the wagon yard, and for this purpose left the sidewalk near the vat and started across the lot. It was dark, and all at once Johnson slipped into the vat, which was filled with boiling water. His arms caught on the edge of the vat as he went down, but he was badly scalded up to the waist. His injuries were very painful, and to some extent permanent. He was laid up for some time. He was compelled to spend large sums in doctor's bills. The vat was left open much of the time. The manager's attention had been called to it before the accident. The plaintiff also offered to show that another person had previously fallen into it. There was a wooden top covered with zinc which was sometimes put over the vat, but it was not fastened in any way. The street was a much traveled street. There was no danger from the vat as long as a man stayed on the pavement. The lot was open and uninclosed, the top of the vat was level with the ground, and there was nothing to give notice of the danger when it was dark. The defendant, at the conclusion of the plaintiff's evidence, introduced its witnesses and showed by its manager that the laundry shut down about 6 o'clock, and that about the time it was shut down the top was on the vat. The accident to Johnson happened about 8 o'clock. It also showed that persons in the neighborhood would come upon the lot and get water out of the vat. At the conclusion of all the evidence the court peremptorily instructed the jury to find for the defendant, and the plaintiff appeals.

It is conceded that Johnson was a trespasser upon appellee's property, and the question to be determined is whether the laundry is liable for maintaining so dangerous an excavation within four feet of the highway. The rule of law on the subject is thus stated in 2 Shearman & Redfield on Negligence, § 715: "The occupant of the land is under no obligation to strangers to place guards around excavations made by him, unless such excavations are so near a public way as to be dangerous, under ordinary circumstances, to persons passing upon the way and using proper care to keep upon the proper path, in which case he must take reasonable precautions to prevent injuries to such persons. Where the excavation is at a considerable distance from the public path, there can be no question that the owner or occupant is not liable to a mere stranger falling therein, whether consciously or unconsciously; but he is liable if he leaves an unguarded excavation so near to the highway that a person accidentally slipping from the highway falls into it. Of course, it is culpable negligence to leave a pit or other excavation in such an unguarded state as to cause injury to a person having a right to be upon the land, and using that right with ordinary care; and although a passenger along the highway, in endeavoring to avoid the excavation, goes upon the excavator's land, that fact does not of itself bar his right of recovery." To same effect, see 1 Thompson on Negligence, § 1228, and cases cited. In this section several illustrations of the rule are given. The learned author then says: "The true distinction, taken by Chief Baron Pollock in a well-considered case, and adverted to with approval in other cases, was thus expressed: 'When an excavation is made adjoining to a public way, so that a person walking upon it might, by making a false step, or being affected with sudden giddiness, or, in case of a horse or carriage way, might, by the sudden starting of a horse, be thrown into the excavation, it is reasonable that the person making such excavation should be liable for the consequences but, when the excavation is made at some distance from the way, and the person falling into it would be a trespasser upon the defendant's land before he reached it, the case seems to us to be different. We do not see where the liability is to stop. A man getting off the road on a dark night, and losing his way, may wander to any extent, and, if the question be for the jury, no man can tell whether he is liable for the consequences of his act upon his own land or not We think the proper and true test of legal liability is whether the excavation be substantially adjoining the way and it would be very dangerous, if it were otherwise--if in every case it were left as a fact to the jury whether the excavation were sufficiently near to the highway to be dangerous."'

In the case before us the plaintiff's own testimony shows that he deliberately and purposely left the highway for the purpose of walking across the lot to take his uncle out of sight of the street. He was willfully using the defendant's property for his private purposes without any invitation from the defendant, and without its consent. So far as he is concerned, it is immaterial how far the vat was from the highway. He was not a traveler on the highway at all when he fell into the vat. He was then a trespasser on appellant's lot, having intentionally left the highway for purposes of his own. The case would not be essentially different if there had been no highway adjoining the lot. It is insisted, however, that the owner of this uninclosed lot in a city ought to know that trespassers are liable to come upon it, and that a vat of boiling water is a thing so dangerous that it is negligence in the owner not to guard it as to one who falls into it in the dark. The general rule is that the owner of private grounds is under no obligation to keep them safe for the benefit of intruders who come upon them for their own purposes, however innocent the purpose may be. 1 Thompson on Negligence, §§ 945, 946. The exceptions to the rule are where the owner of the property expressly or impliedly invites the use of it, or so maintains it as to make it what is sometimes called an attractive nuisance, especially in the case of children and animals. See, also, Bishop on Noncontract Law, §§ 845-853; Bransom's Adm'r v. Labrot, 81 Ky. 638, 50 Am.Rep. 193, and cases cited. The case before us does not fall within either of these exceptions.

In the case of Union Stock Yards Company v. Rourke, 10 Ill.App. 474, one who was crossing another's grounds in the city of Chicago without authority fell into a deep pool of water over which a crust had formed resembling dry land and was drowned. The owner was held not liable, on the ground that he was under no obligation to keep the place safe as to intruders. In Stone v. Jackson, 32 Eng. Law & Eq. 349, a woman crossing the defendant's unfenced ground in order to make a short cut and avoid an angle in the street, as many persons were accustomed to do, fell into an unguarded vault which was open. This was in a city, and the vault was perhaps as dangerous as the vat in this case. The owner was held not liable. In Hounsell v. Smyth, 7 C. B. (N. S.) 731, a person was crossing an open tract of land lying between two highways, and fell into an open and unfenced mine. The court held that persons crossing the grounds with the owner's permission must take the permission "with its concomitant conditions, and it may be perils." In Benson v. Baltimore Traction Company (Md.) 26 A. 973, 20 L.R.A. 714, 39 Am.St.Rep. 436, a class of students were given permission upon request to inspect a power house. One of them while there fell into an uncovered vat of boiling water in a dark place where he could not see. It was held that he could not recover. In a note to this case a number of authorities are referred to. The general rule on the subject is thus admirably stated by Chief Justice Bigelow in Sweeney v. Old Colony, etc., R. R. Co. (Mass.) 87 Am.Dec. 644: "All the cases in the books, in which a party is sought to be charged on the ground that he has caused a way or other place to be incumbered, or suffered it to be in a dangerous condition, whereby accident and injury have been occasioned to another, turn on the principle that negligence consists in doing or omitting to do an act by which a legal duty or obligation has been omitted. Thus a trespasser, who comes on the land of another without right, cannot maintain an action, if he runs against a barrier or falls into an excavation there situated. The owner of the land is not bound to protect or provide safeguards for wrongdoers. So a licensee, who enters on premises by permission only, without any enticement, allurement, or inducement being held out to him by the owner or occupant, cannot recover damages for injuries caused by obstructions or pitfalls. He goes there at his own risk, and enjoys the license subject to its concomitant perils. No duty is imposed by law on the owner or occupant to keep his premises in a suitable condition for those who come there solely for their own convenience or pleasure, and who are not either expressly invited to enter or induced to come upon them by the purpose for which the premises are appropriated and...