Williams v. Mayor, Etc., of City of Nashville

• Decision Date: 02 February 1901
• Parties: WILLIAMS v. MAYOR, ETC., OF CITY OF NASHVILLE.
• Court: Tennessee Supreme Court

63 S.W. 231

WILLIAMS v. MAYOR, ETC., OF CITY OF NASHVILLE.

Supreme Court of Tennessee.

February 2, 1901.

Appeal from circuit court, Davidson county; John W. Childress, Judge.

Action by one Williams against the mayor and city council of the city of Nashville. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Pitts & Meeks and H. C. Lassing, for appellant. E. A. Price and K. T. McConnico, for appellees.

BEARD, J.

This is an action to recover damages for personal injuries sustained, as is alleged, from the negligence of the defendant. The case was disposed of on demurrer. The declaration averred that the city of Nashville at the time of the injury was, and for many years prior thereto had been, the owner of a tract of land contiguous to a public street in the populous part of the city, which it had used as a rock quarry, upon and from which it had quarried, and under contracts with others had caused to be quarried, a large amount of stone, in the course of which employment deep and dangerous excavations were made, abutting upon and near to a public street and certain roadways and passageways which were through and across this land, and over which it knew the citizens of Nashville were accustomed to pass, which excavations the city permitted to remain unfenced and unguarded, and without signals or warnings of any kind. It is further averred that plaintiff, while returning at night from the central part of the city to his home, located beyond the premises in question, and being ignorant of the dangerous excavations, in "attempting to cross the premises along a pathway thereon leading towards his home from the point" where he had disembarked from a car on the public street nearest his home, without fault or negligence on his part fell into one of these excavations, and received personal injuries, for which he sued.

One of the grounds of the demurrer sustained by the court below, in substance, is that, upon the facts averred, the plaintiff was using the pathway in question for his own convenience, without invitation from the defendant, and in doing so took the risk of the injury from these excavations. It will be observed that the case made in the declaration is not that of a party who, while using ordinary care, is injured by accidentally falling into an excavation made by the owner of his own land, but so near to a highway as to render it unsafe to one passing over it, as in Barnes v. Ward, 9 C. B. 392; City of Norwich v. Breed, 30 Conn. 535; Niblett v. Mayor, etc., 12 Heisk. 684. Nor does it involve the rule of law upon which the proprietor is held liable for an injury resulting from the use of dangerous, but alluring and unguarded, machinery erected by him on his own land, sustained by one unable to judge of the danger of a careless use of it, as in Railroad Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745, and Whirley v. Whiteman, 1 Head, 610. But it is, rather, that of one who, leaving a public street, voluntarily, for his own convenience, undertakes to cross the land of defendant, excavated by it and by those authorized by it to do so for a legitimate purpose, by a way which, with the acquiescence of, but without invitation from, the defendant, many persons had used, and in thus passing over it accidentally falls into one of the excavations, and, being seriously injured, undertakes to recover damages for such injury. While it is true that, when the owner of the land expressly or by implication invites a person to come upon his land, he will be...