At the time the intestate was killed, he was passing over the branch track upon defendant's land. It cannot be doubted from the evidence, that he had an implied license to cross at that point, and hence that he was lawfully there. He was not there by invitation of the defendant, nor in the business of the defendant, but for his own purpose on his way home. While he was lawfully there, he had no right as against the defendant to be there. It could at any time have revoked the license and then he could not have crossed at that point without being a trespasser.
The cars were lawfully upon the branch track, and the defendant had the right to have them there. The defendant owed the intestate no active duty. It owed him no duty whatever, except such as every citizen owes another. It had no right intentionally to injure him, and would be liable if it heedlessly or carelessly injured him while performing its own business. It owed him a duty to abstain from injuring him either intentionally or carelessly, but it did not owe him the *Page 533 duty of active vigilance to see that he was not injured while upon its land merely by permission for his own convenience. If the point where the intestate was killed had been a public highway, or if at the time he had been a passenger in a car upon the main track, and he had been injured by collision with the cars coming down the branch track, or if in any other way he had been not only lawfully, but in the exercise of a right at that point, the defendant would have owed him a duty to see that the cars upon the branch track were properly secured, but as it was they owed him no duty and cannot be charged, as to him, with negligence in not blocking or fastening the cars. In reaching this conclusion, I think I am sustained both by principle and authority. In the case of Southcote v. Stanley (1 Hurl. N., 246), the declaration alleged that the defendant was possessed of an hotel, into which he had invited the plaintiff to come as avisitor, and in which there was a glass door which it was necessary for the plaintiff to open for the purpose of leaving the hotel, and which the plaintiff, by the permission of the defendant, and with his knowledge, and without any warning from him, lawfully opened for the purpose aforesaid as a door which was in a proper condition to be opened; nevertheless, by and through the mere carelessness, negligence and default of the defendant the door was then in an insecure and dangerous condition and unfit to be opened, and by reason of the said door being in such insecure and dangerous condition, and of the then carelessness, negligence, default and improper conduct of the defendant in that behalf, a large piece of glass fell from the door and wounded the plaintiff. The defendant demurred, and it was held that the declaration disclosed no cause of action. The counsel for the plaintiff attempted to uphold the declaration upon the ground that the plaintiff was lawfully in the hotel. Baron BRAMWELL recognizes the distinction I have above alluded to, and places his concurrence in the decision upon the ground that the declaration alleged no "act of commission," but merely "want of care — a default in not doing something." In Gautret v. Egerton (2 Law *Page 534 Reps., C.P., 370), the declaration stated that the defendants were possessed of land with a canal and cuttings intersecting the same, and of bridges across the canal and cuttings communicating with and leading to certain docks of the defendants, which land and bridges were used with the consent and permission of the defendants by persons proceeding to and coming from the docks; that they wrongfully and improperly kept and maintained the land, canal, cuttings and bridges, and suffered them to be in so improper a state and condition as to render them unsafe for persons lawfully passing along and over the said land and bridges toward the said docks; and that one G., lawfully passing over and using the bridges, through the wrongful, negligent and improper conduct of the defendants, fell into one of the cuttings and was drowned. It was held on demurrer that the declaration disclosed no actionable breach of duty on the part of the defendants. It was attempted to uphold this declaration upon substantially the same argument that has been urged here for the plaintiff, that the defendants owed G. a duty because he was lawfully upon their land. WILLES, J., in his opinion says: To create a cause of action in such a case, something like fraud must be shown and "to bring the case within the category of actionable negligence, some wrongful act must be shown or a breach of some positive duty; otherwise, a man, who allows strangers to roam over his property, would be held answerable for not protecting them against any danger which they might encounter whilst using the license." KEATING, J., says: "I am utterly unable to discover any duty which the defendants have contracted toward the person whom plaintiff represents, or what particular breach of duty is charged." The case of Bolch v. Smith (7 Hurl. N., 732), was an action to recover damages for injuries to the plaintiff by coming in contact with machinery that was carelessly left unguarded. Baron MARTIN says: "Then what is the true condition of the plaintiff? It is said that he had a right to go along the path across which the machinery was erected, for he was a workman employed on the dock-yard, and had liberty to use the water closet. *Page 535 But that is a fallacious argument. It is true the plaintiff had permission to use the path. Permission involves leave and license, but it gives no right. If I avail myself of permission to cross a man's land, I do so by virtue of a license, not of a right. It is an abuse of language to call it a right; it is an excuse or license, so that the party cannot be treated as a trespasser. Inasmuch as there was another way by which the plaintiff might have gone, but voluntarily chose the one which was out of order, I think he has no right of action against the defendant, and that he ought to have been nonsuited on the trial." In Hounsell v. Smyth (97 Eng. C.L., 729), the declaration stated that the defendants were seised of certain waste land upon which was a quarry that was worked by a certain person subject to the payment of certain royalties to the defendants; that the waste land upon which the quarry was situated was inclosed and open to the public, and that allpersons having occasion to pass over the waste had been used andaccustomed to go upon and across the same without interruption orhindrance from, and with the license and permission of the ownersof the waste; that the quarry was situate near to and between two public highways leading over the waste, and was precipitous,c., and dangerous to persons who might accidentally deviate or stray, or who might have occasion to cross over the waste for the purpose of passing from one of such roads to the other beside or near the quarry; that the defendants knowing the premises, negligently and contrary to their duty, left the quarry unfenced and took no care, and used no means for protecting the public or any person so accidentally deviating from the said roads or passing over the waste, from falling into the quarry; and that the plaintiff, having occasion to pass along one of the said roads, and having by reason of the darkness of the night accidentally taken the wrong road, was crossing the waste for the purpose of getting into the other, and not being aware of the existence or locality of the quarry, and being unable by reason of the darkness to perceive the same, fell in and was injured. It was held on demurrer, that the declaration disclosed no legal *Page 536 ground of complaint. WILLIAMS, J., says: "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 any person 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 the concomitant conditions and, it may be, perils." In the case of Indermaur v. Dames (2 Law Reports, C.P. 311), a gas-fitter having contracted to fix certain gas apparatus to the defendant's premises, sent his workman, the plaintiff, after the apparatus had been fixed, and by appointment with the defendant, to see that it acted properly. The plaintiff, having for this purpose gone upon the defendant's premises, fell through an unfenced shaft in the floor and was injured. It was proved that the premises were constructed in the manner usual in the defendant's business — that of a sugar refiner — but that the shaft could, when not in use, have been fenced without injury to the business. It was held that the plaintiff was not a mere volunteer, and was entitled to recover. It is clear that, if the plaintiff had been a mere volunteer upon the premises, by permission, that he would have been defeated in the action. The language of WILLES, J., in delivering the judgment in the court below, is approved, which was as follows: "We think that argument (that the plaintiff was a bare licensee) fails, because the capacity in which the plaintiff was there was that of a person on lawful business, in the course of fulfilling a contract in which both the plaintiff and defendant had an interest, and not upon bare permission." The decision in that case was based upon the ground that the defendant owed a duty to the plaintiff to provide for his safety against the accident complained of while engaged in his service. In the case of Smith v. Dock Co. (3 Law Reports, C.P., 326), the defendants, a dock company, provided gangways from the shore to the ships lying in their dock, the gangways being made of materials belonging to the defendants and managed by their *Page 537 servants. The plaintiff went on board a ship in the dock, at the invitation of one of the ship's officers, on business, and while he was on board, the defendants' servants, for the purpose of the business of the dock, moved the gangway, so that it was, and to their knowledge, insecure. The plaintiff, in ignorance of its insecurity, returned along it to the shore; the gangway gave way and he was injured. It was held that there was a duty on the defendants toward the plaintiff to keep the gangway reasonably safe, and that he was entitled to recover. The recovery was put upon the express ground that the defendants owed plaintiff a duty because he had the right to go to the vessel upon the invitation of the officer to transact business; but the idea of any liability, except as they owed him a duty from the legal relation he bore to them, was expressly repudiated. BOVILL, C.J., says: "It has been contended that, if the defendants are under any liability to the plaintiff, they must be equally so to every one who comes on to the docks for the mere purpose of hawking goods; but to that I cannot agree. If a person who enters the docks be a mere volunteer, there may be no duty toward him on the part of the defendants; but if he has business on board of the ship, then it seems to me the case assumes a different aspect, even independently of the fact that he will be then coming upon the business of the dock company in the sense I have described; for the gangway being placed there as the means of access to all persons having business on board the ship it amounts to an invitation to persons having business on board the ship to go upon it, as was held with respect to the road in Corby v.Hill (4 C.B.N.S.; 556). The case, then, comes within the principle that persons inviting others on to their premises are answerable for anything in the nature of a trap on their grounds. I think there was a duty upon the defendants toward the plaintiff."
The counsel for respondent cited, upon the argument of this case, among other authorities, the cases of Corrigan v. UnionSugar Refinery (98 Mass. 577), and Driscoll v. The Newark,c., Cement Co. (37 N.Y. 673). Both of these *Page 538 cases illustrate the principles to which I have called attention as controlling in the decision of this case. In the Massachusetts case, it appeared that the plaintiff, thirteen years old, being sent on an errand by his mother, had occasion to go through a passage way adjoining the defendants' refinery, over a portion of which way they had constructed a roof; that it was the defendants' habit to supply ale to their workmen in the refinery, who were accustomed to throw the empty ale kegs out of a window down upon this roof, from which, from time to time, they were taken away; and that, just as the plaintiff, in going through the passage way, emerged from under this roof, such a keg was thrown by one of the workmen so carelessly that it fell off the roof and struck the plaintiff on the head, and injured him greatly. It was held that the defendants were liable, and that it made no difference whether the way was public, and thus the plaintiff was traveling it as a matter of right, or whether it was private and he was traveling it by permission. GRAY, J., delivering the opinion of the court, says: "Even if he was there under a permission which they might, at any time, revoke, and under circumstances which did not make them responsible for any defect in the existing condition of the way, they were still liable for any negligent act of themselves or their servants, which increased the danger of passing, and, in fact, injured him." It will be seen that the defendants were held liable upon the ground of a negligent act, not for a mere omission of duty. Suppose the keg had been carelessly placed upon the roof and had blown off; or, suppose the roof had been left in an insecure condition and had fallen down and injured the plaintiff passing upon his own business, by permission, would the defendant have been held liable? Suppose a person is building a house upon his own land and the scaffolding is carelessly left so insecure that it is blown down upon some one passing by permission; or suppose the house itself is so insecure that it falls down upon a person thus passing, would the owner of the house and land upon which the accident happened, be liable? I *Page 539 think these questions must be answered in the negative, for the reason that while the persons charged with the supposed injury in these cases, were bound to abstain from intentionally or carelessly injuring the other persons, they owed them no duty of active vigilance and care to see that they were not injured. In the New York case, it was held that it was the duty of persons engaged in blasting, to give notice to all persons about passing within the limits of possible danger, at the time of firing the blast. Here again, was a negligent act, firing the blast without giving the notice to persons lawfully within the vicinity. It was properly held that the defendants owed a duty to all such persons, to give the notice.
The superior duty owed to a person who is rightfully at the place when he is injured, is clearly illustrated in Just. Inst., liber 4, title 3, p. 5, de putatione as follows: "If a man lopping a tree chance to kill a slave who is passing, he is an offender, if he worked near a public road, or in a way leading to a village, without giving proper warning; but, if he make due proclamation, and the other did not take care of himself, the lopper is exempt from fault; and he is equally so, although he did not make proclamation if he worked apart from the high road, or in the middle of a field, for a stranger has no right of passage through such place."
There is a class of cases in the books in which it has been held, that a person who sets spring guns or traps upon his own land, is liable to persons injured by them although they were trespassers. These decisions are based upon the ground that a person would have no right to intentionally and directly shoot or entrap a trespasser upon his land, and hence that he could not do that thus indirectly, which he had no right to do directly. The law holds him responsible, not upon the ground of negligence, but upon the ground that he intended the consequences which followed his acts. There is another class of cases where a person has been held liable to those who were injured while passing, by permission, over his private way. Thus, a man has a private way leading over his own land to his house, and he digs a ditch across it, or carelessly *Page 540 places an obstruction in it, and a person passing over the same toward his house is, without his own fault, injured. In such a case he would be held liable, because he may be treated as having invited the person to pass over this road to his house, and it would be a fraud on his part, knowingly to place these obstructions, in the nature of traps, in the way.
In the case under consideration, it is not shown that the defendant is chargeable with any knowledge that the brakes were not set, or that the brakes were intentionally left unset, and hence it cannot be claimed that there is any element of fraud or positive wrong in this case. It is sought to hold the defendant liable, upon the ground that it owed a duty to the intestate to know that the brakes were not set, and then to set them. The only use of this branch track was for the running of the cars. The cars were properly upon it. The intestate, when he crossed the track, knew its purpose, and he had no right to claim of the defendant that it should see that he was not injured, while under its license he was passing over the track, by the omission of any active vigilance and care. He had the right to claim that it should not purposely or carelessly injure him, but he could not ask them to be active to ward off from him the perils of the track. Hence I conclude, that the judge presiding at the trial, erred in holding that the defendant owed the intestate the duty to set the brakes.
But if it should be admitted that the defendant owed some duty to the intestate, for what degree of carelessness would the defendant be held liable? To persons riding in its cars, or traveling upon a public highway crossing a railway track, a railroad company is justly held responsible for the greatest degree of vigilance and care. But the same rule, it seems to me, cannot apply to a case like this. Here the intestate was passing over the track by permission. The defendant had entered into no contract with him, and had no legal relations with him. Its cars were upon its track so situated that they could not pass to the fatal spot except by first passing up an ascending grade. Nothing but an extraordinary wind, such as *Page 541 occurred at the time, could probably have driven these cars up this grade, and the defendant had no reason to expect, from the movement of the cars, any damage, except to its own property. Was the defendant bound to expect this violent wind, that the cars might be driven by it up this grade, and then upon the intestate? Admitting the duty, the greatest degree of vigilance probably required all this of the defendant. But, did ordinary care and diligence require it? This question, it seems to me, ought, in any event, to have been submitted to the jury. If the defendant was responsible for any care to the intestate, it certainly was ordinary care only, and the court erred, under all the circumstances of this case, in holding, as a matter of law, that the case of negligence was made out against the defendant, by simply showing that the brakes were not set.
I am, therefore, for reversing the judgment below, and granting a new trial.