In dissenting from the views expressed in the prevailing opinion I will first state the facts in detail as the jury could have found them if the case had been submitted to them for decision.
The defendant owned a small tract of land in the suburbs of the city of Syracuse, bounded on one side by Onondaga creek and on the other three sides by public highways. There was a plainly marked and well-defined driveway extending entirely across the tract in a diagonal line from West Lafayette avenue on the south to West Brighton avenue on the north. This driveway had been used continuously by the public for more than twenty years and was practically a highway though not legally such, because it had never been accepted by the public authorities. It was of the uniform width of from fourteen to sixteen feet throughout the entire distance between the two avenues which it connected. It had no fence on either side, no grass grew on it, and it was simply naked earth, stone and gravel, worn by long use into a plain, hard, well-beaten road. It was not plowed or cultivated, although crops were raised on either side, and it was openly and notoriously used by the general public as a short cut from one avenue to the other. For more than twenty years, twenty-four years according to the recollection of one witness, it had been in daily use by all kinds of vehicles, including grocery, coal, dirt, milk and delivery wagons, hucksters, carriages, buggies, hacks, light wagons and heavy wagons, farmers' wagons loaded *Page 247 with hay and produce, and the like. Men, women and children walked over it every day and apparently it was traveled upon much more than many regular highways in the country. Traffic thereon was continuous and increased as the years went by. There were no obstructions in the driveway, but it was an open and well-defined road, a highway for all practical purposes and was regarded as an actual highway by travelers and observers generally. During all this time its course and character were unchanged, except that its condition was improved by the long-continued use.
One witness, a physician, testified that since 1899 he had driven over it at all hours of the night and day, generally from one to five times during every twenty-four hours. His recollection was that for about ten years prior to the accident he had used it from 350 to 400 times a year, passing and meeting all kinds of vehicles on the way. Other witnesses gave evidence of the same character.
The accident in question happened on the 13th of October, 1908. For many years prior thereto the plaintiff had constantly used the driveway, the last time being about two weeks before he was hurt. During this period of two weeks he was absent from the neighborhood, but for two months before he had driven over the driveway every day except Sunday and for six or seven years before he had walked over it every day.
The defendant used the easterly part of the tract as a sand bed and as time passed the excavation made by taking away the sand gradually approached the driveway. From August 1st to October 1st, 1908, it progressed about five feet in that direction, but a steam shovel was introduced and after that the advance was more rapid. When the plaintiff went over it about two weeks before the accident the excavation was about thirty feet from the driveway, but during the fortnight following it was advanced, without his knowledge, substantially *Page 248 across the driveway. At this point it was twenty-five or thirty feet deep with steep sides. There was no guard, light, notice of any kind or warning to protect those who had been accustomed to use the road. On a dark night the plaintiff was walking upon the driveway with the care of an ordinary traveler on a highway, and having no knowledge of the excavation tried to cross the driveway, fell into it and was severely injured. He brought this action to recover damages for the injuries thus sustained. He was nonsuited at the Trial Term, but the Appellate Division unanimously reversed the judgment and ordered a new trial. The defendant gave the usual stipulation and appealed to this court.
The defendant insists that even if it owed a social duty to the plaintiff it owed him no legal duty and, hence, is not liable in this action. It founds this position on the principle that a landowner is under no obligation to one who travels on his land as a mere licensee, except to refrain from setting traps and spring-guns, and in case it becomes dangerous for any other reason to avoid inviting him; expressly or impliedly, to continue to travel as he had before. Conceding the principle, I insist that this case, as the jury might have found, comes within the exception.
Acquiescence without notice or objection for a continuous period of more than twenty years in the use by the public of a driveway so well worn, plainly defined and generally used as to look like a highway, and for all practical purposes to be one, presents a question of fact for the jury as to whether such acquiescence under such circumstances is an implied invitation by the owner to use such way for the purpose of traveling thereon. Moreover, the excavation was a pitfall, and in effect a trap within the meaning of the authorities. It was more dangerous than a bear trap, which might not spring when touched, or a dynamite bomb, which might not explode when trodden on, and both of which might be easily *Page 249 missed by a traveler on account of the small space occupied by them. The pitfall extended across the driveway, and could not be avoided by one walking thereon in the night time if he kept on traveling in the usual way with no knowledge of its existence. It was not a shallow hole, but was so deep and so situated that almost of necessity a pedestrian at night would fall into it. The defendant knew the facts and dug the hole. It knew that if travelers continued to use the roadway as they had for more than twenty years with the acquiescence of itself and its predecessors in ownership, injury was probable if not certain. Constant user for a long period becomes user by consent, and long user by consent is evidence of an implied invitation to continue the use. I think the jury could have found that an invitation was to be implied from the situation, and also that the pitfall was a trap, the same in legal effect as a bear trap. I place both invitation and trap on the protracted user of what seemed to be a highway and was practically a highway, the sudden change through the affirmative act of the defendant from a condition of safety to one of danger, the care of the law for human life and the right of a traveler to expect, under the peculiar circumstances, that he could continue to travel with safety in the future as the general public, including himself, had in the past. The jury could have found that acquiescence for so long a period in the continuous use of a driveway, which looked like a highway and was generally used as such, was the same in effect as if the defendant, impersonated, had said to the plaintiff: "This is an open driveway connecting two highways. I do not object to your using it." That is what the broad, plainly defined and much used road itself asserted in substance, and although the defendant knew this it let the road keep up its invitation after it had suddenly dug the deep pit and caused the danger. Without warning, in a hasty and unexpected manner, it created a situation more dangerous than setting a spring-gun or a bear trap, *Page 250 and yet the court is about to hold that it had a legal right to do so. If there was not evidence of an implied invitation sufficient to go to the jury in this case, in what case can there be?
I concede the general rule, clearly stated by Judge ANDREWS in an important case, and I rely upon the exception, as clearly stated by him in these words: "When the owner of land, expressly, or by implication, invites a person to come upon his land, he cannot permit anything in the nature of a snare to exist thereon, which results in injury to the person who avails himself of the invitation, and who, at the time, is exercising ordinary care without being answerable for the consequences. * * * In this case we think the circumstances imposed a duty upon the defendant to protect the excavation. It was a new excavation, made long after the public had been permitted to use the lot. It was not the case of a bare permission by the owner to cross his land adjoining a public street. The land had, by use long continued, been made, for the time being, a public place, and part of the highway. It was very probable that injury would occur if the area was left uncovered. * * * We think the defendant could not, under the circumstances, make a dangerous excavation and leave it unprotected without responsibility to those accustomed to use the lot as part of the highway, and who, while exercising due care, were injured by falling into it." (Beck v. Carter, 68 N.Y. 283,292.)
In this case the authorities were carefully reviewed by the eminent judge, who quoted with approval from the opinion of Lord COCKBURN in Corby v. Hill (4 C.B. [N.S.] 556), where he 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. Could they have justified the placing an obstruction across the way *Page 251 whereby an injury was occasioned to one using the way by their invitation? Clearly they could not."
The doctrine of Beck v. Carter was reaffirmed and somewhat extended by the following declaration in Larmore v. CrownPoint Iron Co. (101 N.Y. 391, 394): "The owner of land in general may use it as he pleases, and leave it in such condition as he pleases. But he cannot without giving any warning, place thereon, spring guns, or dangerous traps which may subject a person innocently going on the premises, though without actual permission or license, to injury, without liability. The value of human life, forbids measures for the protection of the possession of real property against a mere intruder, which may be attended by such ruinous consequences. The duty in this case grows out of the circumstances, independently of any question of license to enter the premises. (Bird v. Holbrook, 4 Bing. 628.) So, also, where the owner of land in the prosecution of his own purposes or business, or of a purpose or business in which there is a common interest, invites another either expressly or impliedly to come upon his premises, he cannot with impunity expose him to unreasonable or concealed dangers as for example, from an open trap in a passageway. The duty in this case is founded upon the plainest principles of justice. (Corby v.Hill, 4 C.B. [N.S.] 556; Smith v. London St. K. DocksCo., L.R. [3 C.P.] 326; Holmes v. North Eastern Railway Co., L.R. [6 Exch.] 123.) The duty of keeping premises in a safe condition even as against a mere licensee may also arise where affirmative negligence in the management of the property or business of the owner would be likely to subject persons exercising the privilege theretofore permitted and enjoyed to great danger. The case of running a locomotive without warning over a path across the railroad which had been generally used by the public without objection, furnishes an example. (Barry v.N.Y.C. H.R.R.R. Co., 92 N.Y. 289. See, also, Beck v. *Page 252 Carter, 68 id. 283.) The cases referred to proceed upon definite and intelligible grounds, the justice of which cannot reasonably be controverted."
The doctrine of Beck v. Carter is so generally recognized that I make but one further quotation from the authorities. Judge PARKER, in Murphy v. City of Brooklyn (118 N.Y. 575, 579), laid down the general rule and then said: "There is an exception to this general rule. Where the owner expressly or by implication invites an individual or the public to come upon his land, he is liable to respond in damages to one who accepting the invitation is injured by pitfalls or snares maintained upon the premises."
I concede that the defendant would not be liable for an omission to repair, as was held in a case relied upon in the prevailing opinion. (Cusick v. Adams, 115 N.Y. 55.) The defendant has not been held liable for any reason of that character, but for an affirmative, intentional act, done with full knowledge that it would result in great danger to the public, accustomed with its acquiescence during almost a generation to use the way where the danger existed. I concede also that in Beck v. Carter the path was near a public street and was used in connection with it, but here it was not a mere path near a highway. It was an ancient, worn, beaten driveway, sixteen feet wide throughout its entire length, not simply near or adjacent to a highway but actually connecting two highways and so situated and in such a condition as to lead the traveling public to believe that it was itself a highway and "thus induce them to use it as such." (Binks v. Yorkshire Railway Co., 32 L.J. [N.S.] Q.B. 26.) It was quite as much a "part of the highway" as was the vacant lot in Beck v. Carter, and it was "used as a means of access" from one highway to another, which makes a stronger case for recovery than Corby v. Hill.
We cannot reverse the judgment appealed from without *Page 253 overruling, whether we say so expressly or not, the leading case of Beck v. Carter, which for a generation has stood without criticism and has been recognized as the law of the state.
For these reasons, as well as those so well stated by Presiding Justice McLENNAN, in writing for the Appellate Division, I dissent from the judgment of reversal about to be pronounced and vote in favor of affirmance.
CULLEN, Ch. J., GRAY, HAIGHT, HISCOCK and COLLIN, JJ., concur with WILLARD BARTLETT, J.; VANN, J., reads dissenting opinion.