(Dissenting). The plaintiff’s case proceeds upon the theory that the pit or area on the defendant’s premises made the use of the sidewalk by the public dangerous, and that the plaintiff, Mrs. Crogan, while using the sidewalk, fell into the pit and was injured. Both counts in the complaint are adapted to that theory, and the case in the court below was tried and decided on that ground.
The defendant’s claim, which was sustained by the court, was,—1st, that the plaintiff was not injured while in the exercise of any rights as a traveller upon a highway, but was upon the defendant’s premises, seeking to find the door to his factory, and consequently that there was a substantial variance; 2d, that the plaintiff was a trespasser; and 3d, that upon the facts the plaintiff was entitled to only nominal damages.
The errors assigned by the plaintiff follow, exactly the claims made by the defendant. We see no suggestion in the record that any claim was made by the plaintiff that the defendant was liable on any other ground than that he had exposed to harm those using the highway.
If then the plaintiff, as a traveller on the highway, received no injury, the cause of action as alleged in the complaint is not proved, and she can recover only nominal damages. Upon principle this must be so. The defendant’s liability to a traveller depends upon the proximity of the pit to the sidewalk and its connection therewith; his liability to one properly on his land depends upon the location of the pit in connection with the special circumstances of the case; was the pit such that strangers would be likely to fall into it ? *210had. the defendant reason to anticipate such consequences, and was it his duty to guard against them ?
It is obvious that the duty which the defendant owed to the travelling public is very different from that which he owed to individuals coming upon his premises. The degree of care is greater in the one case than in the other, and depends upon an entirely different state of facts. In the one case it is a material inquiry, was the plaintiff in contemplation of law a traveller upon the highway when injured ? In the other such an inquiry would be irrelevant.
In the first count in the complaint it is alleged that the defendant kept and maintained, substantially adjoining Franklin street, a public highway, and so near the public footway of the highway as to make the use of the same unsafe and dangerous, a deep area or pit, without rail, cover or guard of any kind; and that the plaintiff was injured when “ passing along said public footway of said highway.”
In the second count it is alleged that the defendant “ kept and maintained upon his said land between the public foot-way or pavement on said Franklin street and said pit or area, a brick pavement or footway in all respects like the .public pavement or footway, and separated in no manner therefrom, and invited, licensed and permitted the public to make use of the same in the same manner and to the same extent that they made use of the public way from which it was in no manner to be distinguished by the eye.” It is then alleged that “ the said plaintiff, Sarah M. Crogan, was passing along said public way, and from the said public way passed over and upon the said brick pavement of the defendant, and by reason of the existence of the same and of said area or pit, and the want of any rail, cover or guard, and of any light or warning, she being in the exercise of due 'care, slipped and fell into said area or pit.”
Now the case shows that the plaintiff went “to the corner of Franklin street, and. then she took a direct line towards and to the wooden porch of the factory, crossing Franklin street diagonally. When she reached the porch she missed the door knob, and in stepping around to find it she fell into the area, &c.”
*211Thus it will be seen that all she had to do with the sidewalk was to cross it diagonally. She did not unintentionally stray from the sidewalk, but she consciously and intentionally left it to go to the defendant’s building. The defendant’s brick pavement had nothing whatever to do with causing the accident. It seems to me very clear that the facts proved disprove the cause of action alleged.
Whether the defendant owed the plaintiff any duty which he neglected, considering her merely as an individual on his premises, and not one of the public on the sidewalk, is a question which was not tried in the court below, and one which cannot now be tried in this court. The defendant’s counsel deny any such liability under this complaint, and the plaintiff’s counsel practically admit that there is none; for the only claim which they make under the second count is that she was not a trespasser in passing over the defendant’s brick pavement, but that she was induced or allured to enter upon the defendant’s property from the sidewalk by means of said pavement. I do not controvert the proposition that she was lawfully on the defendant’s land; but it is difficult-to see how she was allured thereon by the defendant’s pavement. Her sole object in going “to the building was to look after her boy, who, as she supposed, was in danger, and she went directly there without any regard to the pavement. And that is all the allurement there was; an implied license to go upon the premises. Upon these facts to say that that pavement “ allured ” the plaintiff on to the premises and into the pit, seems to me a gratuitous assumption, not warranted by anything in the finding. I think the decision of the Superior Court was right.
I concur fully in the views presented by the Chief Justice in his opinion, with regard to the effect of a demurrer overruled on the position of the parties upon the hearing in damages.
In this opinion Loomis, J., concurred.