Patten v. Bartlett

• Citation: 89 A. 375,111 Me. 409
• Parties: PATTEN v. BARTLETT.
• Decision Date: 31 January 1914
• Court: Supreme Judicial Court of Maine (US)

89 A. 375

111 Me. 409

PATTEN

v. BARTLETT.

Supreme Judicial Court of Maine.

Jan. 31, 1914.

Report from Supreme Judicial Court, Aroostook County, at Law.

Action by John Patten against Fred Bartlett. On report Judgment for plaintiff.

Argued before SAVAGE, C. J., and SPEAR, CORNISH, KING, BIRD, HANSON, and PHILBROOK, JJ.

Powers & Archibald, of Houlton, for plaintiff.

Hersey & Barnes, of Houlton, for defendant.

PHILBROOK, J. The plaintiff is a general truckman, residing and doing business at Houlton. The defendant owns a house and lot in the same town, occupied by J. Aubrey Henderson, a tenant at will. Before the occupancy of the premises by Henderson, the defendant had moved the barn from its former location on the lot to a position in line with the house and ell, so that the entire line or buildings extended easterly from the street, and the back end of the bam was nearly contiguous to the easterly line of the lot. Southerly from the barn, in its new location, and very near the easterly line of the lot, before the occupancy of the premises by Henderson, the defendant had made an excavation in the ground for a cesspool, and had provided no covering for it, nor had any fence been erected around it, nor other barrier provided to warn any person of its location, and to prevent accident by reason of its existence. According to one witness, who claimed to have made some measurements, the cesspool, or excavation, ran two feet back of the outer edge of the slip or bridge which afforded entrance to the barn, and extended six feet out into the driveway. He also testified that the distance from the edge of the slip to the edge of the cesspool was about a foot. This excavation became filled with water, the water became frozen, and upon this frozen water, and upon the adjacent soil, snow had fallen to the depth of about five inches, according to the testimony of the plaintiff, thus concealing the existence of the excavation.

About 6 o'clock in the afternoon of December 29, 1911, while the premises were thus occupied by Henderson, the plaintiff went there with his truck team for the purpose of delivering a load of wood to Henderson. He drove into the dooryard, stopped his team, and began to unload the wood; but, on being told by the wife of the tenant that she wanted the wood unloaded nearer the barn, he led his horse toward the easterly line of the lot, whereupon he and his horse fell into the cesspool, from which he escaped, but the horse was killed.

This action was brought to recover the damages sustained by the loss of the horse. The defendant introduced no testimony; but at the conclusion of the evidence offered by the plaintiff the case was withdrawn from the jury, by agreement, and reported to this court, with a stipulation that, if the defendant were liable, damages should be assessed for the plaintiff in the sum of $150, and interest from the date of the writ.

The defendant urges that the plaintiff has not only failed to prove due care affirmatively, but that the evidence conclusively establishes his contributory negligence. This is a question of fact to be determined from all the evidence in the case. The plaintiff had been upon the premises before the barn had been moved, or the cesspool dug. He was somewhat familiar with conditions existing there before either of these things had been done. Would it be claimed that on the 29th of December he should expect to find a dangerous and unguarded excavation like that which was there? "It is a sound rule of law that it is not contributory negligence not to look out for danger when there is no reason to apprehend any." Engell v. Smith, 82 Mich. 1, 46 N. W. 21, 21 Am. St. Rep. 549; Beach on Negligence, 41; Christopher v. Russell, 63 Fla. 191, 58 South. 45, Ann. Cas. 1913C, 564. The plaintiff went upon the premises at the close of a winter day, when early darkness had rendered objects somewhat obscure, but when there was sufficient light to enable outdoor work like that he was doing to be easily performed without a lantern. He did not call for a lantern. None was necessary, if the premises contained no hidden pitfall. It is true that the wife of the tenant spoke to him, saying, "When you go near the corner of the platform, be sure and turn out in the field;" but her directions did not arouse any reason in his mind to apprehend or look for the danger which was in his path, and she testifies that "the cesspool didn't come into my mind at the time," meaning the time when the plaintiff came to deliver the wood. Obviously there was nothing in this incident which would cause the plaintiff to be charged with lack of due care or contributory negligence. We have examined all the evidence carefully, and, while it is always easy to say what should have been done after knowledge has been gained by painful experience, we are inclined to the belief that this plaintiff, on that late December afternoon, did what any ordinarily prudent man would have done under similar circumstances, and while engaged in such an enterprise.

Was the plaintiff on the premises as a trespasser, or as a mere licensee, or was he there by invitation, express or implied? The correct answer to this inquiry will assist in determining the question of liability for the damages which he sustained. Plainly he was not there as a trespasser. "A licensee is a person who is neither a passenger, servant, nor trespasser, and not standing in any contractual relation with the owner of the premises, and is permitted to come upon the premises for his own interest, convenience, or gratification." 29 Cyc. 451, and cases there cited. "It is well settled that, to come under an implied invitation, as distinguished from a mere licensee, the visitor must come for a purpose connected with the business...