William Chicoine, Jr., B/N/F v. James E. Cashman, Inc

• Decision Date: 16 February 1936
• Citation: 183 A. 487,108 Vt. 133
• Parties: WILLIAM CHICOINE, JR., b/n/f v. JAMES E. CASHMAN, INC
• Court: Vermont Supreme Court

183 A. 487

108 Vt. 133

WILLIAM CHICOINE, JR., b/n/f v. JAMES E. CASHMAN, INC

Supreme Court of Vermont

February 16, 1936

January Term, 1936.

Negligence---Necessity of Breach of Duty---Duty of Occupant to Trespasser---Declaration Held Insufficient as Failing to Establish Duty---Explosives Left on Premises.

1. Negligence presupposes a breach of duty owed by the party charged to the party injured.

2. The owner or lawful occupant of real estate is under no obligation to a trespasser, whether adult or child, to protect him from injury by reason of the unsafe and dangerous condition of the premises.

3. In action for negligence, where plaintiff's declaration alleged that plaintiff, a boy of fourteen, while playing on an embankment belonging to a third party, from which defendant, with the permission of the owner, had been drawing sand, found a box of blasting caps left by defendant's servants when they stopped work over Sunday, took them home and picked at one of them with a pin, causing it to explode whereby he was injured through the negligence of the defendant in leaving the caps when none of its employees were present, knowing that children were accustomed to play there and were unfamiliar with the peril, held that no duty of protection was shown and that demurrer was properly sustained.

ACTION OF TORT for negligence. The defendant demurred. Hearing on the demurrer at the September Term, 1934, Chittenden County Buttles, J., presiding. Demurrer sustained and judgment for the defendant. The plaintiff excepted. The opinion states the case. Affirmed.

Judgment affirmed.

Willsie E. Brisbin and Frederick W. Wakefield, Jr., for the plaintiff.

Austin & Edmunds for the defendant.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.

OPINION

MOULTON

The declaration alleges that on Sunday, April 15 1934, the plaintiff, a boy fourteen years of age, along with several companions, was playing upon a certain embankment in the City of Burlington, according to the custom of the children of the neighborhood. The embankment was situated upon the property of the Central Vermont Railway Company, which had, sometime before, given the defendant permission to draw sand therefrom. This work had been going on for several weeks, with the aid of defendant's steam shovel and blasting operations to loosen the sand so that it could be more easily removed by the shovel. After stopping work over the Sunday, the defendant's employees left a box containing dynamite and blasting caps near the scene of their operations. This box was found by the plaintiff who abstracted from it four blasting caps, which he, being ignorant of their nature, took to his home, and afterwards picked at the end of one of them with a pin. The cap exploded and he was injured. It is alleged that the defendant was negligent in leaving the caps upon the embankment while none of its employees were present, knowing that children were accustomed to play there and were unfamiliar with the peril. There was a demurrer to the declaration, which the trial court sustained, and the cause comes here upon the plaintiff's exceptions.

The plaintiff admits, tacitly at least, that he was a trespasser, and, in the brief filed by his counsel, full recognition is given to the doctrine of Bottum's Admr. v. Hawks, 84 Vt. 370, 373, 79 A. 858, 860, 35 L.R.A. (N.S.) 440, Ann. Cas. 1913A, 1025, that "as a general rule, an owner is under no legal obligation to trespassers or licensees to keep his premises or property in proper condition; and this rule applies with equal force to children and adults." But it is urged that this rule has no application under the circumstances of the case. Humphrey v. Twin State Gas and Electric Company, 100 Vt. 414, 139 A. 440, 56 A.L.R. 1011, is claimed to be controlling. It appeared therein that the defendant, by consent of the owner of the land, had constructed an electric transmission line across a woodlot. A tie wire broke and the live feed wire was pulled off from an insulator and, sagging down, came in contact with a wire fence, charging it with the current. The plaintiff, while hunting, crossed the woodlot, and in attempting to pass through the fence, received a severe shock. He was held to be entitled to recover. It was assumed, for the purposes of the opinion, that he was a trespasser upon the woodlot, and therefore he could not recover as against the owner of the land who owed him no duty to keep the premises safe for his unlawful use. But the defendant did not stand in the position of the owner, and was not entitled to the same defense. "The object of the law being to safeguard and protect the various rights in land, it is obviously going quite far enough to limit the immunity to the one whose rights have been invaded. Nor does logic or justice require more. A trespass is an injury to the possession; and as it is only he whose possession is disturbed who can sue therefor, so it should be that he, alone, could assert the unlawful invasion when suit is brought by an injured trespasser. One should not be allowed to defend an indefensible act' by showing that the party injured was engaged in doing something which, as to a third person, was unlawful" (p. 418).

So here, it is argued that the defendant was not the owner of the embankment, but merely the licensee of the owner; that the plaintiff's trespass was committed against the Central Vermont Railway Company, and not...