#### Brinilson, Administrator, Respondent, vs. Chicago & Northwestern Railway Company, Appellant.

*January 10*—

January *31, 1911.*

*Negligence: Dangerous premises: Railroads: Steam pit in breakwater used as walk: Duty to licensees: "Want of repair: Notice: Death of child: Contributory negligence.*

1. Where a railway company whose track ran along the shore of Lake Michigan had constructed outside of such track a breakwater covered on top with planking which formed a firm and even walk or pathway, access to which from the street was unobstructed, and to the knowledge of the company’s agents'and servants such planked surface was used by the public as a pathway or walk and by boys as a place for boating, fishing, and swimming, the persons making such customary use of the premises were licensees, having implied permission so to use them, and not trespassers.

2. Under such circumstances a licensee must be deemed to take the premises as he finds them, and the licensor owes him no duty except to refrain from acts of active negligence rendering the premises dangerous.

3. Where in such breakwater the railway company had constructed a steam and hot-water pit, five feet in diameter at the top and six or seven feet deep, covered like the rest of the breakwater with planking, and had suffered a large hole in the covering, caused by the removal of one of the planks, to remain a long time unrepaired, and such hole was not readily observable, being obscured by the steam rising through it and through the cracks between the other planks, the company was guilty of active and actionable negligence rendering it liable for the death of a boy five and one-half years old who, while walking with an older brother along the plank covering of the breakwater, fell through the hole into the steam pit.

4. Evidence that persons had observed such hole at various times, from three months before the accident down to the day thereof, warranted the jury in finding that the railway company was negligent in failing to discover the hole and repair it.

5. In view of the tender age of the deceased and of the surrounding conditions, it cannot be held as matter of law that he was guilty of contributory negligence in not observing and avoiding the hole.

*615Appeal from a judgment of tbe circuit court for Milwaukee *countj:*OseeN T. Williams, Circuit Judge.

*Affirmed.*

Tbe plaintiffs intestate, a boy of tbe age of five and one-balf years, on February 22, 1906, fell into a steam and hot-water pit constructed by tbe defendant in a breakwater wbicb it maintained to protect its property along tbe shore of Lake Michigan in tbe city of Milwaukee. Tbe boy was so badly scalded by the steam and hot water discharged into this pit from tbe roundhouse of tbe defendant near by that be died on March 5, 1906. Tbe pit into wbicb tbe boy fell was in tbe center of a crib in tbe breakwater, was about three feet in diameter at tbe bottom, possibly five feet in diameter at tbe top, and six or seven feet deep. In tbe previous October tbe defendant bad removed tbe stone from tbe crib so as to form tbe pit above described and bad laid an underground conduit from its roundhouse to tbe center of tbe pit. Tbe pit was covered by planks wbicb were a part of tbe planking covering tbe breakwater. Tbe child fell into tbe pit through an opening about a foot wide and from six to seven feet long made by tbe removal of part of a plank of that size in tbe breakwater covering. Tbe boy and an older brother were walking over part of tbe breakwater and into tbe railroad yards, where they looked for tin plates and some colored glass thrown from tbe dining cars of tbe defendant.

Tbe complaint alleges that tbe breakwater was made a pleasant promenade by being covered with planking, that no obstructions were so placed as to prevent its use by tbe public, and that people were not excluded from walking upon it. It is alleged that tbe death of tbe boy was due to tbe negligence of tbe defendant in permitting a dangerous bole to exist in tbe covering of tbe pit in tbe manner stated, and damages are asked for tbe death of tbe boy thus caused and for the pain and suffering endured by him in consequence of bis injuries during bis lifetime.

Tbe evidence tends to show that tbe defendant’s agents and *616servants knew that the public were using tbe breakwater and the adjacent grounds for-walking, fishing, and swimming, but that notices of “No thoroughfare” were posted to warn people off of the tracks, and that people, boys particularly, were expelled from the tracks.

The breakwater extends north from Polk street. The evidence as to whether or not a fence extending east from a building belonging to the defendant along the north line of Polk street extended over the breakwater at the time of the accident is in conflict.

There was evidence that the hole in the planking on the breakwater had existed for some weeks before and up to the time of the accident and that it was a dangerous trap to persons walking on the breakwater. Various witnesses testified that they had seen the hole in the covering of the breakwater two or three months before the accident, a month or two before the accident, two weeks before it, and also on the day before the accident. There was evidence tending to show that this opening was difficult to see because of the steam arising from the hole and from the cracks between the other planks, and because of the conditions surrounding it.

The jury found that the defendant was negligent and that it caused the injury, and awarded damages. This is an appeal from the judgment on the verdict in plaintiff’s favor.

*William, G. Wheeler,*for the appellant.

Eor the respondent there was a brief by *Norman L. Baker*and *W'. J. Zimmers,*and oral argument by *Mr. Baker.*

Siebeckee, T.

The appellant avers that the place where the boy was injured is its property. This the respondent denies, and asserts that the place of injury is located on the bed of Lake Michigan, and hence not within the boundaries of the appellant’s private grounds. In the view we take of the case this question need not necessarily be considered in determining the issues raised and we therefore do not decide this controversy between the parties.

*617It is undisputed tbat tbe appellant maintained a breakwater at tbe place designated to protect its grounds from tbe action of tbe waters of tbe lake; tbat it bad filled with eartb tbe area between tbe breakwater and tbe dry land; and tbat it used and occupied tbis area for railroad purposes. As appears in tbe above statement of facts, tbe appellant bad covered tbe surface of tbe breakwater witb planking wbicb formed a firm and even walk or pathway along and above tbe waters of tbe lake, wbicb was used by tbe public as a footpath to pass and repass over these grounds and for walking along tbe edge of tbe lake. Boys bad made a practice of so using it and as a place for boating, fishing, and swimming. Tbe evidence fully justified tbe jury in finding tbat appellant’s agents and servants knew tbat tbe premises were being so used. It appears tbat there was a fence along tbe south line of appellant’s grounds, abutting on Polk street, but tbe evidence is in conflict as to whether or not tbe fence extended onto tbe breakwater, and tbe jury may well have found tbat tbis end of tbe breakwater was unobstructed and open so tbat people could pass without interference in going to and from tbe street onto tbe railroad grounds, and tbat an open passageway over tbe breakwater was thus afforded them. In tbe light of such facts and circumstances it cannot be said tbat persons who passed onto tbe breakwater and adjacent grounds were there under such forbidding circumstances as to make them trespassers. It seems reasonably clear tbat people customarily used tbis place as a footpath and tbat boys especially used it as a place for tbe purposes of boating and swimming. These uses of tbe premises must be held to have been within tbe knowledge of tbe railroad’s agents and servants and that an implied permission existed which justified persons in so using tbe breakwater and adjacent grounds. Under these circumstances tbe persons so passing over tbis place on these premises cannot be considered trespassers; they must be considered as having entered onto tbe premises witb tbe implied permission of tbe railroad company for tbe customary purposes. Tbe license to so use tbe *618premises implies permission to so nse them, and the railroad company cannot now be heard to charge that such use constitutes a trespass. Under these circumstances persons making such customary use of the premises are licensees.

The evidence sustains the claim that the decedent, at the time of injury, was using this place in the customary way, namely, as a footpath in passing over the breakwater, and his relation to the railroad company was that of a licensee. See *Hupfer v. Nat. D. Co.*114 Wis. 279, 90 N. W. 191; *Gorr*v. Mittlestaedt, 96 Wis. 296, *71*N. W. 656; *Muench v. Heinemann,*119 Wis. 441, 96 N. W. 800. With this relation existing between the appellant and the decedent, the legal duty devolving on the company is as recognized and declared in the *Muench*Case, that a licensee must be deemed to take the premises as he finds them, “and the licensor owes him no duty, save to refrain from acts of active negligence rendering the premises dangerous.” The case of *Klix v.*Nieman, 68 Wis. 271, 32 N. W. 223, is not at variance with this rule. The facts of that case show that the danger complained of was one connected with an unfenced natural pond on a private lot, but so remote from the street and sidewalk as not to make their use dangerous; nor was it shown that the owner had done anything to this pond to create a pitfall or snare liable to injure persons going onto the lot. In the instant case the facts are different, in that the alleged dangerous condition was created by the company, and the question is whether or not, in view of the fact that the company knew or ought to have known that both adults and children were resorting to and using the place for travel and amusement, the omission to keep the pit covered created a danger likely to cause injury to persons so using the premises with ordinary care. That the opening or hole in the cover of the steam pit, as described in the evidence, was dangerous seems self-evident from its very nature and condition. It is also clear that the hole in the planking that covered the excavation was not readily observed, and was ob-*619soured by tbe steam rising therefrom through this hole and the cracks between the planks covering the pit. This condition of the place made the pit a dangerous trap or pitfall to persons on the premises, and the omission to observe and repair the planking constitutes active negligence on the part of the railroad toward them.

It is contended that it is not shown that the company was negligent in permitting this hole to exist, because it had no notice or knowledge thereof prior to the day of the accident. The evidence discloses that a hole had been observed by various persons two or three months, one month, two weeks, and on the day before the accident. These evidentiary facts furnish a sufficient basis for the conclusion of the jury that the railroad company was guilty of a want of ordinary care in failing to discover the hole in the plank covering over the steam pit and in neglecting to repair it before the time of the accident.

It is probable that the decedent had not observed the hole. His conduct in this respect must be viewed in the light of his age and the surrounding conditions and of the danger, and when so considered it cannot be held as matter of law to show that he was guilty of contributory negligence in producing' the injuries complained of. Cases illustrating the principles and grounds of liability under the circumstances disclosed here are *Kinchlow v. Midland E. Co.*57 Kan. 374, 46 Pac. 703; *Penso v. McCormick,*125 Ind. 116, 25 N. E. 156; *Union Pac. R. Co. v. McDonald,*152 U. S. 262, 14 Sup. Ct. 619.

We find no reversible error in the record.

*By the Gourt.*— Judgment affirmed.