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good qualitites, coupled with their courage and true devotion to duty, they are employed to turn the wheels of commerce, distributing the surplus products and commodities of the country, and transporting the travelling public from place to place. These important duties are not intrusted to the hands and conscience of criminals, men who wantonly and recklessly take the lives of their fellowman. I refer to these matters for the purpose of showing how absolutely baseless is the claim that railroad companies are held liable in this class of cases on account of the inhuman conduct of its employees, notwithstanding the contributory negligence of the trespasser. Such assertion is not only unfounded, but every intelligent observing man knows that it is not true.

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My long experience upon the bench and close observation of the numerous cases which I have tried of this class has thoroughly convinced me that this co-called humanitarian doctrine has opened wider the door to fraud and perjury than any policy adopted by the courts since the enactment of the Statutes of Frauds and Perjuries. This seems to be the consensus of opinion among disinterested members of the bar and of many leading and able jurists of the country. .

Another great evil and living menace to the whole country has grown up with and out of this ruling of the Courts; that is, the extension of the right of pedestrians to walk upon and over all portions of railroad tracks. I refer to the tramp, hobo, and yeggman. Prior to this ruling the tramp and his pals were unknown and unheard of. They appeared with the evolution of that doctrine, and since its full development they, like the poor, are with us always. He is as much the direct product of that doctrine as the lily of the field is the product of soil, rain, and sunshine.

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This case shows how absolutely unjust and intolerable this rule has become. It protects the drunken trespasser, lying asleep upon the raiload tracks, obstructs commerce and travel, and subjects the company to the payment of $8,000, together with interest and costs, for injuring him while lawfully running its train upon its own tracks, where it has a right to be, and could be nowhere else. I have often wondered why the Courts did not also extend the measure of damages in such cases so as to compensate such poor unfortunates for the disturbance of their sleep, as well as for the personal injuries inflicted under such circumstances, for he is as much entitled to the one as the other; and the time is not far distant, I dare say, when the Courts will require the company to furnish beds, electric fans, ice water, and mint juleps to all who imbibe too freely, and who wish to sleep off their stupor upon the tracks of the great arteries of commerce. What are we coming to? What an absurdity and travesty upon justice this is! If it was not for the seriousness of this question to the railroads of the country, to the public at large, and to the commercial interests generally, it would be highly grotesque. But its seriousness robs it of its grotesqueness, and

causes us to contemplate with alarm the results of a rule that holds a railroad company liable among other things for injuries done to a drunken man lying asleep upon its tracks. It is shocking to every instinct of right, justice, and morality...

But even under the so-called humane rule, the plaintiff, in my judgment, should be denied a recovery in this case. The company never assented, by acquiescence or otherwise, to Fletcher's lying down and sleeping on the side of the track, and while so doing he was not one of the public who was using the right of way as a footpath with the knowledge and acquiescence of the company. He was a trespasser while lying there. . . . I am therefore of the opinion that the judgment should be reversed.1

Topic 3. Invitees

721. INDERMAUR v. DAMES

COMMON PLEAS. 1866

L. R. 1 C. P. 274

THIS was an action brought by the plaintiff to recover damages for an injury which he had sustained through the alleged negligence of the defendant and his servants.

The cause was tried before ERLE, C. J., at the sittings in Middlesex after last Michaelmas Term. The facts were as follows: The plaintiff, who was a journeyman gas-fitter, was at the time of the accident hereinafter mentioned in the employ of one Duckham, a gas-engineer and fitter, who was the patentee of an improved self-acting gas-regulator. The defendant is a sugar-refiner having extensive premises in White1[PROBLEMS:

The defendant had waste land in which was an unfenced quarry hole. Persons were accustomed to cross the waste land by paths without objection by the defendant. The plaintiff, passing over it at night, took the wrong path, and in crossing to get back to the right path, fell into the quarry and was injured. Is the defendant liable? (1860, Hounsell v. Smyth, 7 C. B. N. S. 731.) The defendant's land was used by the public, without objection from the defendant, on a path. Near the path was an unfenced vault. The plaintiff, passing at night, strayed from the path, fell into the vault, and was injured. Is the defendant liable? (1900, De Tarr v. Brewing Co., 62 Kan. 188, 61 Pac. 688.)

The plaintiff's intestate was killed, by fault of the defendant, while standing on the front platform of the defendant's street-car. A notice warned the plaintiff, "Passengers riding on the front platform do so at their own risk." Is the defendant liable? (1910, Jones v. Boston & N. S. R. Co., 205 Mass. 108, 90 N. E. 1152.)

NOTES:

"Liability of owner to licensee for harm by dangerous animals." (A. L. Reg., L, 578.)

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"Injury to licensee." (M. L. R., II, 488.)

"Injuries to trespassers on railroad right of way." (Y. L. J., XX, 669.)]

chapel. In June, 1864, Duckham, through one Hargreaves, his agent, agreed with the defendant, who was necessarily a large consumer of gas, to fit up on his premises two of his regulators. . .

On Saturday, the 25th of June, Hargreaves went to the defendant's premises, pursuant to appointment, for the purpose of fixing the apparatus. He was accompanied by the plaintiff and another workman in Duckham's employ, named Bristow, and a lad. The plaintiff, however, not being upon that occasion quite sober, Mr. Woods, the defendant's manager, would not allow him to go upon the premises, and the regulators were fixed by Bristow, assisted by the lad, and the work was duly completed.... Hargreaves went to the premises on the following Tuesday, accompanied by the plaintiff, in order to examine the several burners and so test the apparatus. Before going there for that purpose, Hargreaves cautioned the plaintiff, saying, "Now, mind, Indermaur, sugar-houses are very peculiar places: they neither allow candles nor lucifers. We must keep our eyes open. There is a man to go with us with a light. I shall follow the man; and you keep close to me." When they arrived at the premises, Hargreaves and the plaintiff, accompanied by one of the defendant's workmen with a light, proceeded to the first floor, and, after examining one of the burners, went round to another part of the floor for the purpose of inspecting another. In the mean time, the plaintiff, who had left a pair of plyers at the spot they first went to, turned back to fetch them; but, in returning, instead of going round the way Hargreaves and the defendant's man had gone, he walked straight accross towards them, not perceiving an intervening hole in the floor, and fell through to the floor below, a depth of about thirty feet, and fractured his spine.

The hole in question was a shaft or shoot four feet three inches square, communicating from the basement to the several floors of the building. It was fenced at each side, but open back and front. It was necessary to the defendant's business to have such a shaft; and it was necessary that it should, whilst in use for the raising or lowering of goods, and occasionally also for purposes of ventilation, be open and unfenced; and there was no evidence to show that it was usual in buildings of the kind to adopt the precaution of fencing such shafts.

On the part of the defendant it was submitted that there was no duty or obligation on him to fence the shaft, and consequently no cause of action; and reliance was placed upon Wilkinson v. Fairrie, 1 H. & C. 633, 32 L. J. (Ex.) 73. .

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In his summing up, the Lord Chief Justice stated in substance as follows: . . . That which may be no negligence towards men ordinarily employed upon the premises, may be negligence towards strangers lawfully coming upon the premises in the course of their business. . . If there was want of reasonable care in the defendant, and no want of reasonable care in the plaintiff, then the plaintiff was entitled to a verdict.

The jury returned a verdict for the plaintiff, damages £400. Huddleston, Q. C., in Hilary Term, obtained a rule nisi to enter a nonsuit. . . .

Ballantine, Serjt., and Raymond, showed cause.

Huddleston, Q. C., and Griffits, in support of the rule.

Curia advisare vult. Feb. 26. The judgment of the Court (ERLE, C. J., WILLES, KEATING, and MONTAGUE SMITH, JJ.) was delivered by Willes, J.

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It was also argued that the plaintiff was at best in the condition of a bare licensee or guest who, it was urged, is only entitled to use the place as he finds it, and whose complaint may be said to wear the color of ingratitude, so long as there is no design to injure him: see Hounsell v. Smyth, 7 C. B. N. S. 371 (E. C. L. R. vol. 97), 29 L. J. (C. P.) 203. We think this argument 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 the defendant had an interest, and not upon bare permission. No sound distinction was suggested between the case of the servant and the case of the employer, if the latter had thought proper to go in person; nor between the case of a person engaged in doing the work for the defendant pursuant to his employment, and that of a person testing the work which he had stipulated with the defendant to be paid for if it stood the test; whereby impliedly the workman was to be allowed an onstand to apply that test, and a reasonable opportunity of doing so..

The authorities respecting guests and other bare licensees, and those respecting servants and others who consent to incur a risk, being therefore inapplicable, we are to consider what is the law as to the duty of the occupier of a building with reference to persons resorting thereto in the course of business, upon his invitation, express or implied. The common case is that of a customer in a shop: but it is obvious that this is only one of a class; for, whether the customer is actually chaffering at the time, or actually buys or not, he is, according to an undoubted course of authority and practice, entitled to the exercise of reasonable care by the occupier to prevent damage from unusual danger, of which the occupier knows or ought to know, such as a trap-door left open, unfenced, and unlighted: Lancaster Canal Company v. Parnaby, 11 Ad. & E. 223 (E. C. L. R. vol. 39), 3 P. & D. 162; per cur. Chapman v. Rothwell, E. B. & E. 168 (E. C. L. R. vol. 96), 27 L. J. (Q. B.) 315, where Southcote v. Stanley, 1 H. & N. 247, 25 L. J. (Ex.) 339, was cited, and the Lord Chief Justice, then ERLE, J., said: "The distinction is between the case of a visitor (as the plaintiff was in Southcote v. Stanley), who must take care of himself, and a customer, who, as one of the public, is invited for the purposes of business carried on by the defendant."

The class to which the customer belongs includes persons who go not as mere volunteers, or licensees, or guests, or servants, or persons

whose employment is such that danger may be considered as bargained for, but who go upon business which concerns the occupier, and upon his invitation, express or implied. . . .

Having fully considered the notes of the Lord Chief Justice, we think there was evidence for the jury that the plaintiff was in the place by the tacit invitation of the defendant, upon business in which he was concerned; that there was by reason of the shaft unusual danger known to the defendant; and that the plaintiff sustained damage by reason of that danger, and of the neglect of the defendant and his servants to use reasonably sufficient means to avert or warn him of it: and we cannot say that the proof of contributory negligence was so clear that we ought on this ground to set aside the verdict of the jury.

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Affirmed in Exchequer Chamber, L. R. 2 C. P. 311.

Rule discharged.

722. NORRIS v. NAWN CONTRACTING CO.

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1910

206 Mass. 58, 91 N. E. 886.

TORT by the administrator of the estate of Ralph E. Norris, who was the son of the plaintiff, for causing the death of the plaintiff's intestate by the falling of a derrick upon him, when he had gone into the quarry of the defendant between Paul Gore Street and Boylston Street in that part of Boston called Jamaica Plain on January 18, 1906. Writ dated July 11, 1906.

At the trial in the Superior Court, HITCHCOCK, J., ordered a verdict for the defendant; and the plaintiff alleged exceptions.

A. T. Smith, for the plaintiff.

J. Lowell and J. A. Lowell, for the defendant.

KNOWLTON, C. J. This is an action of tort to recover for the death of the plaintiff's son by the fall of a derrick in the defendant's quarry. The deceased was a newsboy nearly fourteen years of age, and he had been engaged in delivering and selling papers not long before the accident, which happened at twenty-five minutes past seven o'clock in the morning.

We will assume in favor of the plaintiff that there was sufficient evidence to entitle him to go to the jury on the questions whether his intestate was in the exercise of due care and whether the fall of the derrick resulted from a defect which might have been discovered by the exercise of reasonable care and diligence on the part of the defendant's servants.

There was a driveway which passed into the quarry from Paul Gore Street, and around a stone crusher near the street, and out into the street again over a part of the same road. It was four hundred to five

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