Lowe v. Salt Lake City

• Decision Date: 24 March 1896
• Docket Number: 605
• Citation: 44 P. 1050,13 Utah 91
• Court: Utah Supreme Court
• Parties: WILLIAM LOWE, RESPONDENT, v. SALT LAKE CITY, APPELLANT

44 P. 1050

13 Utah 91

WILLIAM LOWE, RESPONDENT, v. SALT LAKE CITY, APPELLANT

No. 605

Supreme Court of Utah

March 24, 1896

Appeal from the district court of the Third judicial district Territory of Utah, Hon. S. A. Merritt, Judge.

Action by William Lowe against Salt Lake City for damages sustained by his falling into a hatchway while crossing the back yard of the city hall at night. From a judgment for plaintiff defendant appeals.

Affirmed.

E. D Hoge and W. G. Van Horne, for appellant.

Having gone where he had no right to go, plaintiff became a trespasser, and cannot recover in this action. 1st Adison on Torts, par. 229, p. 254; Bishop Non-Contract Law, sec. 866; B. & O. R. R. Co. v. Schwindler, 101 Pa. St. 258, and cases cited in the opinion to the case.

On page 262 of this case the court says: "The plaintiff may not have been technically a trespasser, but he was where he had no legal right to be."

So, in this case, the plaintiff had a right to the use of the urinal, and to the extent of going to and from the outhouse, the right to cross the yard by the path leading to same, and when he left that path and went in almost an opposite direction, he was where he had no legal right to be.

In 25 Mich., Hargreaves v. Deacon, page 1, uses this language: "We have found no support for any rule which would protect those (child or adult) who go where they are not invited (or have no right to go), but merely with express or tacit permission, from curiosity, or motives of private convenience, in no way connected with business or other relations with the occupant." McKone v. Michigan Cent. R. R. Co., 51 Mich. 601.

While we concede that the respondent had the right to pass into the back yard and use the urinal or backhouse, he had no right to the entire yard, or to travel over any part of it, other than the path leading to and from the urinal or backhouse. Adison on Torts, 1st vol., par. 229, p. 254; Bishop Non-Contract Law, sec. 266, and cases above cited; Zoebiesch v. Tarbell, 10 Allen, 365; 57 Ills. 393.

The doctrine as laid down by Adison we believe to be fundamental, to wit: "A person who strays from the ordinary approaches to the house, and trespasses upon the adjoining land, where there is no path, has no remedy for any injury he may sustain from falling into unguarded wells or pits, as the injury is the result of his own carelessness and misconduct."

Miner & Hiles, for respondent.

The law being that the owner of a building is bound, so far as the exercise of ordinary care will enable him so to do, to keep it in such condition that it will not, by any insecurity or insufficiency for the purpose to which it is put, injure a person rightfully in or around or upon it. Ryder v. Kinsey (Mich.), 64 N.W. 94.

The courts hold that 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 premises, and using that right with ordinary care. Sherman and Redfield on Negligence, 599.

The supreme court of California, in Malloy v. Hibernia Sav. & Loan Soc., 21 P. 525, holds that leaving an unprotected cesspool within ten feet of a public highway, while improvements were being made on the property, will render the owner of the premises liable for the death of a child who wanders from the street into the lot and is drowned in the pool. See Lepnick v. Gaddis, 26 L. R. A. 690; Birge v. Gardiner, 19 Conn. 512.

A verdict will not be disturbed on appeal, where there is evidence tending to prove each fact necessary to support it, although the appellate court might have come to a conclusion different from the jury, upon the whole evidence. Rouse v. Youard, 41 P. 427.

This is true, even though the one complaining of an injury has knowledge of the existence of the defect causing it and is actually looking for such defect at the time of the injury, and is injured thereby. Under such circumstances the question of negligence is one for the jury and not for the court. Pettman v. City of El Reno, 37 P. 851; Olsen v. City of Chippewa Falls, 37 N.W. 575; Malby v. City of Leavenworth, 28 Kansas 747; Corlett v. Same, 27 Kansas 773.

The jury having found that the appellant was guilty of negligence and having failed to find that the respondent was guilty of contributory negligence, this court will not disturb such a finding, for the reason that in actions for damages for alleged negligence, the question of negligence on the part of the defendant and of contributory negligence on the part of the plaintiff, is a mixed question of law and fact, to be decided by the jury, under proper instructions from the court. Cleveland Railway Co. v. Crawford, 15 Am. Rep. 633.

BARTCH, J. ZANE, C. J., concurs.

OPINION

BARTCH, J.:

This action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff because of the negligence of the defendant. It is admitted in the record that the defendant rented a portion of the city hall to the legislature, as a legislative chamber, for the purpose of holding its session in 1889 therein, and received rent for the same, and that the legislature was rightfully there. The material facts shown by the evidence are, in substance, that the defendant was the owner and occupant of the premises in question, at the time in question; that the plaintiff was a member of the legislature, and was rightfully on the premises, attending a session thereof, on the night of the 10th of March, 1890, when the accident happened; that there was an outhouse in the rear of the premises, back of the city jail; that said outhouse, at the time of the accident, was in a very filthy condition, unfit for use, and was locked up, and the key kept in some office in said hall, but the plaintiff did not look for it; that plank steps led from the hallway of the city hall building to the ground in the jail yard; that there was a light in the hallway, but none in the jail yard, although it was the duty of the city jailer to light one on the northwest corner of the jail, and because of his failure to do so it was dark in said yard; that the hatchway was 10 to 14 feet west of said steps, was connected with the building, was about 5 feet deep, 4 feet wide, and extended south from the main building about 12 feet, having cap-stones on top of the edges, which were on a level with the ground, and was entirely unprotected by railing, cover, or otherwise; that on the night in question it was dark, and the plaintiff had occasion to go into said yard to urinate; that he went out by said steps, turned west, fell into said hatchway, and was seriously injured. There is no evidence to show that the defendant notified the plaintiff of the existence of the hatchway, or that the plaintiff knew of its existence before the accident. The jury returned a verdict in favor of the plaintiff in the sum of $ 500. A motion for a new trial having been overruled, and judgment on the verdict entered, the defendant appealed from both the order overruling its motion for a new trial and from the judgment.

Counsel for the appellant, in their brief, concede that the respondent had the right to pass from the city hall building into the rear yard, but limit said right to a path leading from the hall to the outhouse, and insist that when he turned away from the path he became a trespasser, and therefore could not recover. There is, however, nothing in the pleadings or evidence which shows such a limitation of the respondent's right to use said yard. It is admitted that the legislature was rightfully holding its sessions in the building, having rented it for that purpose from the defendant, and the respondent was a member of the legislature, and in the performance of his public duties, at the time of the accident. The yard was appurtenant to the hall, and in the absence of any restrictions, the members of the legislature had a right to make a proper use thereof; and from the circumstances surrounding this case, we cannot say that the respondent was attempting to make an unlawful use of it, and was a trespasser. Nor can we say that he was at the time of the accident where he had no legal right to be, as is contended by counsel....