Lepnick v. Gaddis

• Decision Date: 22 October 1894
• Citation: 16 So. 213,72 Miss. 200
• Court: Mississippi Supreme Court
• Parties: SAM. LEPNICK v. E. F. GADDIS

16 So. 213

72 Miss. 200

SAM. LEPNICK v. E. F. GADDIS

Supreme Court of Mississippi

October 22, 1894

October 1894

FROM the circuit court of Madison county. HON. J. B. CHRISMAN Judge.

The opinion states the facts.

Judgment reversed and cause remanded.

H. B Greaves, for appellant.

The facts set up in the declaration clearly show negligence on the part of defendant, and, as they do not show contributory negligence, the demurrer should have been overruled. Without reference to the authorities sustaining our position, common reason and justice require the defendant, under the facts in this case, to be held liable. Conceding his right to do with his own as he pleases, he must exercise this right with due regard to the rights of others. He should not be permitted to wantonly or carelessly leave unprotected and unadvertised a dangerous excavation in close proximity to a thoroughfare in a thrifty and growing town. The evidence shows that the cistern was a dangerous pitfall, a menace to the lives, not only of strangers, but of the citizens of the community. The declaration is fully supported by the authorities. See 50 Barb. (N. Y.), 358; 16 Ind. 315; 68 N.Y. 283; 30 Conn. 535; Whittaker's Smith on Neg., 65, 66; 9 Penn., 472; 95 Ind. 361. The facts show that defendant invited the public to use the lot and paths thereon. As to what amounts to an invitation, see Railway Co. v. Hirsch, 69 Miss. 126. Appellee was bound not only to leave the cistern safe, but to keep it in a safe condition. Vicksburg v. McLean, 67 Miss. 4.

W. J. Croom, for appellee.

Defendant's storehouse was burned in 1890, and he then ceased to do business on the lot, which became vacant, and continued so until 1893, when plaintiff fell into the cistern and was injured. Under the facts, there was no invitation to the public to use the premises as a highway. One is not invited into danger when his entrance into the dangerous premises is simply not opposed, or not prevented. Thus, one whose uninclosed grounds people cross, without objection, is not liable to a person who falls into an unguarded cistern thereon. Hargreaves v. Deacon, 25 Mich. 1; Cooley on Torts, 606. It is only when, by his active conduct at the time, one invites or induces another to come upon his premises, that there is an invitation. Bigelow's Leading Cases on Tort, 702.

Plaintiff was a bare licensee, or volunteer, and as such has no right of action, unless the cistern was so close to the public highway as to make it a public nuisance. At the nearest point the cistern was twenty-three feet from the highway, and it could not be considered a public nuisance. Bigelow's Leading Cases, 698-700. There was no danger of one, properly using the highway, falling into the cistern. Before reaching it, he would have to become a trespasser. See Woods on Nuisances, § 291; 83 Ill. 204; 9 Am. & Eng. Enc. L., 382; 100 N.Y. 637; 66 Ga. 195; 70 Miss. 695.

Argued orally by F. B. Pratt, for appellant, and W. J. Groom, for appellee.

OPINION

WHITFIELD, J.

The plaintiff rests the cause of action, in the first count, upon this state of case: That defendant had long owned a lot in Flora bounded by two of the main thoroughfares; that the lot was vacant, except for his storehouse, which covered a cistern; that the storehouse had long been used as a place of business; that the entire public used, at defendant's invitation, knowledge, and consent, this vacant lot as a thoroughfare and common in passing from street to street, and also so used two paths over said lot within three and eleven feet, respectively, of the cistern; that the cistern was within twenty-three feet of the pavement; that, in the winter of 1890, the store was burned, but for some time thereafter defendant kept it guarded and advertised so as not to be dangerous to passers by and himself, and continued to use it as a cistern for some time, still guarding and advertising it; that it finally caved in, and he abandoned its use and removed the guards and advertisements which would warn and protect those using the highway, or unconsciously straying therefrom, from danger, but wantonly and carelessly left said cistern as a "menace to the lives and safety of man and beast, within such close proximity to the highway that, under ordinary circumstances, he knew it was dangerous to those using the highway," etc.; "that, during the winter of 1893, appellant, a stranger, while carefully using the highway, the night being dark, rainy and cloudy, and there being nothing to show where the highway ended and the vacant lot begun, strayed therefrom, and, whilst so bewildered and lost, fell into said cistern and was injured."

The second count varies the cause of action by adding that the defendant, while using the store and the vacant lot, constructed, within three or four feet of said cistern, then protected, a hitching post for horses and mules, and invited and induced the public to come upon his said lot, and not to follow the sidewalks, but to come by paths and a wagon road being within three and eleven feet, respectively, of said cistern, and fasten their horses to said hitching post, and that, in consequence of such invitation and inducement thus held out by defendant, "a part of the public sidewalks fell into disuse," which disuse of the sidewalks and use of the paths, being a source of profit to defendant, he had encouraged and invited, and that the paths had been so constantly used for years as a common and constant passway by everybody, at defendant's invitation and request, etc.; and that plaintiff, "while passing along the sidewalk and the path leading across defendant's lot, thinking the same was the highway, being the way apparently commonly used," etc., fell into the cistern and was injured, "complainant being a comparative stranger, and seeing no other used sidewalk."

The third count proceeds on the ground that the cistern was a public nuisance. A demurrer was interposed on the grounds that the declaration showed no negligence on defendant's part, but contributory negligence on plaintiff's part. The demurrer was sustained and the suit dismissed, and this action of the court is the error assigned.

In Beck v. Carter, 68 N.Y. 283, Carter owned the United States Hotel. There was a vacant space of forty or fifty feet between the hotel and Buell street, and "this vacant space was used as a public place, and as part of the street." The hotel was burned in 1868, and rebuilt in 1872, and, in the interim, the same use was continued. The court says: "It is manifest that if the plaintiff had kept within the original bounds of the alley, he could not have fallen into the excavation. It was because he strayed and deviated therefrom, and went upon the defendant's lot, that he was injured. But it cannot be held, upon the evidence, that the plaintiff was a trespasser in going there. There was, it is true, no public easement or right of way over the defendant's lot. It was his private property and he had the right to its exclusive possession. He could have inclosed it, and excluded the plaintiff and all other persons from going upon and passing over it. But . . the public had been permitted to pass over the vacant part of the lot without objection. . . This part of defendant's lot was traversed by foot passengers, and was used as a part of the street. . . The public used it, and the defendant, by his silence, assented to its use. This use was not occasional or infrequent. The same use was permitted and continued after 1868, when the hotel was burned, until a new building was erected. The public still continued to use the lot. There was no revocation of the license or permission." And the court proceeds, after laying down the general rule and reviewing the cases of Hardcastle v. Dun & Co., 4 H. & N. 67, and Binks v. Dun & C...