Phillips v. Library Co. of Burlington

• Decision Date: 09 September 1893
• Citation: 27 A. 478,55 N.J.L. 307
• Parties: PHILLIPS et al. v. LIBRARY CO. Of BURLINGTON.
• Court: New Jersey Supreme Court

27 A. 478

55 N.J.L. 307

PHILLIPS et al.

v. LIBRARY CO. Of BURLINGTON.

Court of Errors and Appeals of New Jersey.

Sept. 9, 1893.

(Syllabus by the Court.)

Error to supreme court.

Action for personal injuries by James Phillips and Emily Phillips against the Library Company of Burlington. From a judgment of nonsuit, plaintiffs bring error. Reversed.

The other facts fully appear in the following statement by DEPUE, J.:

The defendants were owners of a lot of land fronting on Union street, in the city of Burlington, upon which they had erected a two-story building. The defendants used the first story for a public library and reading room. The basement was let by them for school purposes and public exhibitions. The second story was leased to the Order of Red Men of New Jersey, by a lease made in 1866, renewed in 1869, in 1871, and in 1874, with the understanding that another society would use the room on one night in each week, to help pay the rent. Under this arrangement a society of lady Masons occupied the room on Monday night of each week. The plaintiff became a member of the latter society in 1875, and was still a member when the accident occurred. The accident which gave rise to this suit happened on Monday night, December 7, 1885, On the rear of the lot, and some distance behind the building, the defendants had erected a privy or water-closet for use by persons having occasion to use the building for the purposes it was designed. Along the easterly side of the building was a bride walk to the rear end of the building, and from thence a path leading to the water-closet. The entrance to the second-story rooms was from Union street. On the easterly side of the building, the lot, for about 20 feet in width, was not built upon, and on the street front of this lot the defendants had erected a fence, and at the extreme easterly end of the fence placed a gate for the admission of persons having occasion to use the water-closet. From the gate there was a brick walk extending into the lot for a short distance, at the end of which, by turning to the left and going down a step, access might be had to the brick walk alongside the building. From the end of the brick walk by the gate, there was a path leading diagonally across the grass plot to the rear of the building, and there joined with the path to the water-closet. On the night in question, Mrs. Phillips attended a meeting of the lady Masons, and, having occasion to go to the water-closet, took the path diagonally across the lot, and fell into a well that had been excavated across this path by direction of a manager of the library company. The excavation was about 8 1/2 feet deep. It was commenced on Friday morning, and completed on Friday afternoon, about half past 5 o'clock. The accident happened on the following Monday night it was left open and unguarded and was obscured by the shadow of the building from the light of the street lamp. Of the existence of the dangerous condition of this path Mrs. Phillips had no knowledge. For the injury she received, this suit was brought, and at the circuit a nonsuit was granted. This writ of error brings up the propriety of that judicial action.

C. V. D. Joline, for plaintiffs in error.

Mark R. Sooy, for defendants in error.

DEPUE, J., (after stating the facts.)

By the record set up in this case, it appears that the nonsuit was granted on the ground that there was no evidence that the defendants had knowledge that any of their licensees had been taking any other way across their lot than that by the brick walk alongside the building, and that the plaintiff, having knowledge of the two ways by which she might go, one of which was established by the defendants and the other selected by herself, and having elected to go by the latter, is without remedy for the injury she received.

In Vanderbeck v. Hendry, 34 N. J. Law, 467, the supreme court held that mere permission to pass over dangerous lands, or an acquiescence in such passage for the benefit or convenience of the licensee, creates no duty on the part of the owner except to refrain from acts willfully injurious. The premises on which the injury in that case happened were private grounds used for a lumber yard, on which lumber was piled, leaving passageways between the piles for the convenience of loading and unloading. The yard was not inclosed, and persons were in the habit of passing through these gangways to go from street to street. The plaintiff, out of curiosity, went into one of the gangways, and was injured by the falling of a pile of lumber which had been piled in a negligent manner. The court held that an action for such injury could not be maintained; that mere permission or passive license to enter upon lands relieved a person entering premises from the responsibility of being a trespasser, but that he enjoyed the license, assuming the ordinary risks of the nature of the place and the business carried on upon it. This doctrine was reaffirmed in Mathews v. Bensel, 51 N. J. Law. 30, 16 All. Rep. 195. It was there held that an owner of land is not bound to fence dangerous machinery on his premises in favor of a mere licensee. All that may be said in favor of a mere licensee is that he is only not a trespasser, and the general rule of law is that the owner and occupier of private grounds is under no obligation to keep them in a safe condition for the benefit of trespassers, idlers, bare licensees, and others who come upon the premises for their own convenience or pleasure, however innocent their purpose may be. 1 Thomp. Neg. 303.

A different rule prevails where the entry or use of lands is of right or by invitation of the owner, as distinguished from an entry by mere license or sufferance. An owner of lands who, by invitation, express or implied, induces persons to come upon his premises, is under a duty to exercise ordinary care to render the premises reasonably safe for such purposes, or at least to abstain from any act that will make the entry upon or use of the premises dangerous. Hounsell v. Smyth, 7 C. B. (N. S.) 731, is the leading case illustrating the first of these propositions. The question arose upon demurrer to a declaration, which set out that the defendants were seised of a certain waste, upon which was a quarry situate between two public highways, that was worked; that the waste was uninclosed and open to the public, and that all persons having occasion to pass over the waste had been used and accustomed to go upon and across the same without interruption or hindrance from, and with the license and permission of, the owners of the waste. The declaration further alleged that the defendants left the said quarry un-fenced and unguarded, and used no means for protecting persons passing over the said waste land from falling into the said quarry. It was held that the declaration did not set out a legal cause of action. Williams, J., said: "Under these circumstances, the law imposes no duty upon the proprietors of the waste to fence the quarry, nor does it render them responsible to persons who may deviate from one or the other of the roads, and stray upon the waste. * * * No right is alleged. It is merely stated that the owners allowed all persons who chose to do so for recreation or for business to go upon the waste without complaint; that they were not churlish enough to interfere with persons who went there. One who thus uses the waste has no right to complain of an excavation he finds there. He must take the permission with its concomitant conditions, and it may be its perils. Suppose the owner of land near the sea gives another leave to walk on the edge of a cliff; surely it would be absurd to contend that such permission cast upon the former the burthen of fencing." Corby v. Hill. 4 C. B. (N. S.) 556, is the leading case on the second of these propositions. The suit was brought to recover for injuries sustained by coming in collision with a stack of slates and materials placed by the defendants in a private road leading from the turnpike to the Hanwell Lunatic Asylum, and to the residence of the superintendent. The jury found that the defendants had the consent of the owners of the property for placing the slates and materials there, and that there was negligence in leaving the stack without a proper light. The court held the action to be maintainable. Cockburn, C. J., said: "The proprietors of the soil held out an allurement whereby the plaintiff was induced to come upon the place in question. They held out this road to all persons having occasion to proceed to the asylum as the means of access thereto. * * * Having, so to speak, dedicated the way to such of the general public as might have occasion to use it for that purpose, and having held it out as a safe and convenient mode of access to the establishment without any reservation, it was not competent for them to place any obstruction calculated to render the road unsafe, or likely to cause injury to those persons to whom they held it out as a way along which they might safely go." Corby v. Hill was distinguished in Hounsell v. Smyth from the case then in hand, in that, as was said by Williams, J., "in that case [Corby v. Hill] the defendant held out an inducement to persons to come upon the land by permitting it to be used as a means of access to his house, and there fore he was bound to warn persons so using the road of the obstruction which had been placed upon it." The cases illustrative of the duty imposed upon the owner or occupier of lands to exercise care for the safety of persons coming upon the premises by his invitation are quite numerous. Chapman v. Rothwell, El., Bl. & El. 168; Indermaur v. Dames, L. R. 1 C. P. 274, L. R. 2 C. P. 311; White v. France, 2 C. P. Div. 308; Smith v. Docks Co., L. R. 3 C. P. 326; Wright v. Railway Co., 1 Q. B. Div. 252. They are classified in Bigelow, Cas. Torts, pp. 697-701, and in 1 Thomp. Neg. pp. 307-317. In this class of cases the words ...