CASE 42 — ACTION BY GEORGE JOHNSON AGAINST THE PADUCAH LAUNDRY CO. FOR DAMAGES FOR •PERSONAL INJURIES. — March 20.

#### Johnson v. Paducah Laundry Co.

Appeal from McCracken Circuit Court.

W. M. Bled Circuit Judge.

Judgment for defendants', plaintiff appeals.

Affirmed.

Negigence — Acts Constituting — Vat Near Street — A laundry com*370pany maintaining a vat four feet from a street is not guilty of negligence, rendering it liable to one who left the street for his own purposes and was injured by falling into the vat.

HENDRICK & MILLER for .appellant.

POINTS AND AUTHORITIES.

1. Peremptory instruction should never be given at the instance of defendant, after he has introduced testimony. (See Hart v. Callaway, 2 Bibb., 460, 3 Bibb., 527, 3 A. K. Marshall, 276;. Nance V. N. N. *&*M. V. Ry. Co., 13 Ky. Law Rep., 554; Ohio Valley R. R. Co. v. McKinley, 18 Ky. Law Rep., 518; Jacobs v. Case, 8 Ky. Law Rep., 53; Comer v. Shelton, 18 Ky. Law Rep., 518.)

2. Peremptory instruction given in this case wrong in any event. (Stevens v. Brooks, 2 Bush., 137; Buford v. L. & N. R. R. Co., 6 Ky. Law Rep., 263; Hughes v. Cincinnati, &c., R. R. Co., 91 Ky. 526.

3. As to negligence, and duty of owner of private ground with respect to persons coming thereon without invitation. (Bransom v. Labbot, 81 Ky., 642; Sioux City P. R. R. Co. v. Stout, 17 Wallace, 657; Daly v. R. R. Co., 32 Conn., 591; Lowe v. Salt Lake City, 13 Utah, 91; 57 Am. St. Rep., 708; Schilling v. Abernathy, 112 Pa., 437; 56 Am. Rep., 326; Union Pac. R. R. v. McDonald, 152 U. S., 262; Newark Electric Co. v. Gardner, Vol. 37, Law Rep., An., 725; 31 Am. Rep., p. 208; 56 Am. Rep., p. 322; 40 Am. Rep., p. 667; 27 Am. Rep., p. 689; 22 Am. Rep., p. 733; 32 Am. St. Rep., 470-71; 21 Ency. Law, p. 471-2.)

J. D. MOCQUOT, attorney for appellee.

POINTS DISCUSSED AND AUTHORITIES CITED.

1. Appellees owed appellant no duty to protect him from injury while a tresspasser on its private property, he being there without invitation. (Bransom v. Labrot, 81 Ky., 638; Hargbaves v. Deacon, 25 Mich.; Reeves v. French, 20 Ky. Law Rep., 220; Keyes v. Mar-cellus, 45 Am. Rep., 52; City of Scranton v. Hill, 48 Am. Rep., 211; Pekin v. McMaton, 45 Am. Rep., 116.)

2. The peremptory instruction given by the court was proper. (Fugate v. City of Somerset, 16 Ky. Law Rep., *sO'l,*Miller v, Metropolitan Life Ins. Co., MSS. Opinion.)

*371OpiwioN op the Const by

Chief Justice Hobson

Affirming.

The Paducah Laundry Company- has at the rear of its laundry, on Fifth and Jefferson streets, in Padu-cah, a vat, into which the pipes containing .the steam from- the laundry are run to he condensed; .the steam coming from -the boiler in the dry room. The. vat is 6 feet deep, 3 feet, wide, 12 feet long, and is kept full of water. It is four feet from the sidewalk and is situated in ah-open lot. On the' 18th of. January, 1904, George Johnson went to church with his-uncle, and, as they went home, Iris uncle, desiring to .step-aside on a call of nature, they started for the wagon yard,'and for this purpose left the sidewalk near-the vat and started across the lot. It was dark ,and all at once Johnson,slipped into- the vat; which was filled with boiling water. His arms caught on the edge of the vat as he wlent down, but he was badly scalded up, to the; waist. His. injuries were very painful, .and to some .extent permanent. He was laid up for some time. He was compelled to, spend -large sums. in doctor’s bills. The vat was left open much of the time. The manager’s attention had-been called to.it before the accident. The plaintiff also .offered to, show, that another person .had previously fallen into.it. , There was a wooden top covered with zinc -which Was sometimes put over-the vat,-, but it was not .fastened -in any way. The street "was a. much traveled street. There was no danger, from the yat as long as a man stayed on the pavement. The lot was-open and .uninclosed, the top of the vat was level with the. ground, and. there Was nothing to give notice of the danger when it was dark. The defendant, at the conclusion of the plain*372tiff’s evidence, introduced its witnesses and showed' by its manager that the laundry shut down about 6 o'clock, and that about the time it was. shut down the top was on the vat. The accident to Johnson happened about 8 o’clock. It also showed that persons in the neighborhood would come upon the lot and get water out of the vat. At tire conclusion of all the evidence, the court peremptorily instructed the jury to find for the defendant, and tire1 plaintiff appeals.

It is conceded that Joimson was a trespasser upon appellee’s property, and the question to be determined is whether the laundry is liable for maintaining so dangerous an excavation within four feet of the highway. The rule of law on the subject is thus stated in 2 Shearman & Redfield on Negligence, section 715: “The occupant of the land is'under no., obligation to strangers to place guards around excavations made by him, unless such excavations are so near a public way as to be dangerous, under ordinary circumstances, to persons passing upon the way and using proper care to keep upon the proper path, in which case he must take reasonable precautions to prevent injuries to such persons. Where the excavation is .’at a considerable distance from the public path, there can be no question that the owner or occupant is not liable to a mere stranger falling therein, whether-consciously or unconsciously; but he is liable if he leaves an unguarded excavation so near to- the highway that a person accidentally slipping' from the highway falls into it. Of course, it is culpable negligence to leave a pit or other excavation in such an unguarded state as to cause injury to a person having a right to be upon the land, and using that *373right with ordinary care; and 'álthough a passenger along the highway, in endeavoring to avoid the excavation, goes npon the excavator A land, that fact does’not of itself bar his right of recovery. ” To same effect, see 1 Thompson on Negligence, section 1228, and cases cited. In this section several illustrations of the rnle are given. The learned author then says: “The true distinction, taken by Chief Baron Pollock in a well-considered case, and adverted to with approval in other cases, was thus expressed: ‘Wheji an excavation is made adjoining to a public way, so that a person walking upon it might, by making a false step, or being affected with sudden giddiness, or, in case of a horse or carriage way, might, by :the sudden starting of a horse, be thrown into the excavation, it is reasonable that the person making such excavation should be liable for the consequences; but, when the excavation is made at some distance from the way, and tire person falling into it would be a trespasser upon the defendant’s land before he reached it, .the ease seems to us to be different. We do not see where the liability is to stop. A man getting off the road on a dark night, and losing his way, may'wander to any extent and, if the question be for the jury, no pian can tell whether he is liable, for the consequences of his act upon his own land or not. We think the proper and true test of legal liability is whether-the excavation be substantially adjoining the way; and it would be very dangerous, if it were otherwise — if in every case' it were left as a fact to the jury whether the excavation were sufficiently near the highway to be dangerous.’ ”

In the case before us the plaintiff’s own testimony shows that he deliberately and purposely left the *374highway fox- the- purpose of walking across the lot to take his uncle out of sight of the street. He was willfully using the defendant’s property for his private purposes without any invitation from’ the defendant, and without its consent. So far as he is concerned, it is iinanateiial how far the vat was from the .highway. He was- not a traveler on the highway at all when he fell into the vat. He was then a trespasser on appellant’s lot, having intentionally left the highway for purposes of his own. The case would not be essentially different if there had been no highway adjoining the lot. It is insisted, however, that the owner of this uninclosed lot. in a city ought to know that trespassers are liable to come upon it, and that a vat'Of boiling water is a thing so dangerous that it is negligence in the owner not to guard it as to one who falls into it in the dark. The general rule is that the owner of private grounds is under no obligation to keep them safe for' the benefit of intruders wlho -come upon them for .their own pur poses however^ innocent the purpose may be.- 1 Thompson on Negligence/ sections 945, 946. The exceptions to the rule are where the owner of the property expressly or impliedly invites the use of it, or so maintains it as to make it what is sometimes called’ an attractive nuisance, especially in the case of’ children and animals. See, also, Bishop on Non-Contract Law, sections 845-853; Bransom’s Admr. v. Labrot, 81 Ky. 638, 5 Ky. Law Rep. 827; 50 Am. Rep. 193, and cases cited. The case before us does not fall within either of these exceptions-.

In the case of Union Stock Yards Company v. Rourke, 10 Ill. App. 474, one who was crossing another’s grounds in the city of Chicago without *375authority fell into a deep pool of water over which a crust had formed resembling dry land, and was drowned. The owner was held not liable, on the ground that he was under no obligation to keep the place safe as to intruders. In Stone v. Jackson, 32 Eng. Law & Eq. 349, a woman crossing the defendant’s unfenced ground in order to make a short cut and avoid an angle in the street, as many persons were accustomed to do, fell into an unguarded vault which was open. This was in a city, and the vault was perhaps as dangerous as the vat in this case. The owner was held not liable. In Hounsell v. Smyth, 7 C. B. (N. S.) 731, a person was crossing an open tract of land lying between two highways, and fell into an open and unfenced mine. The court held that persons crossing grounds with the owner’s permission mast take the permission “with its concomitant conditions, and it may be peril.’’ In Benson v. Baltimore Traction Company (Mel.) 26 Atl. 973, 20 L. R. A. 714, 30 Am. St. Rep. 436, a class of students were given permission upon request to inspect a power house. One of them while there fell into an uncovered vat of, boiling water in a dark place where he could not see. It was held that he could not recover. In a note to this ease a number of authorities are referred to. The general rule on the subject is thus admirably stated by Chief Justice Bigelow in Sweeney v. Old Colony, etc., R. R. Co. (Mass.) 87 Am. Dec. 644: “All the cases in the books, in which a party is sought to be charged on the ground that he has caused a way or other place to be incumbered, or suffered it to be in a dangerous condition, whereby accident and injury have been occasioned to another, turn on the principle that negligence consists in doing or omitting *376to do an act by which a legal duty or obligation tas been omitted. Ttns a trespasser, who comes on tte land of another without right, cannot maintain an action, if he runs against a barrier or falls into an excavation there situated. The owner of the land is not bound to protect or provide safeguards for wrongdoers. So a licensee, who enters on premises by permission only, without any enticement, allure.'ment, or inducement being held out to him by the owner or occupant, cannot recover damages for injuries caused by obstructions or pitfalls. He goes there at his own risk, and enjoys the license subject to its concomitant perils. No duty is imposed by law on the owner or occupant to keep his premises in a suitable condition for those who come there solely for their own convenience or pleasure, and who are not either expressly invited to enter or induced to come upon them by the purpose for which the premises are appropriated and occupied, or by some preparation or adaption of the place for use by customers or passengers, which might naturally and reasonably lead them to suppose that they might properly and safely enter thereon.”

In Brinkley Car Works v. Cooper (Ark.) 67 S. W. 752, 57 L. R. A. 724, the defendant had upon its premises a pool of hot water. A child six years old walked into it, and was burned. It was held that there could be no recovery; the company having no notice that children were in the habit of playing there. There is also a note to this case citing a number of other authorities. In a note to Woodward v. Miller, 100 Am. St. Rep. 200, the rule of law on the subject is thus stated by Judge Freeman: “In order to maintain an action for an injury due to negligence, *377there must-'be shown to exist some obligation or duty toward the plaintiff which the defendant has left undischarged or unfilled. (Citing authorities.) Hence it is that the owner of dangerous premises is not answerable for injuries suffered by a trespasser or mere licensee who. comes thereon without invitation, allurement, or right. To such persons he owes only the duty to do them no wanton or willful harm, This seems a harsh rule, which justifies a man, legally, in keeping his property in a needlessly dangerous condition; but it has the support of the authorities., without, perhaps, exception.”

Any number of authorities may be cited to sustain this conclusion. The tendency of the later cases is rather to limit the exceptions to the rule than to extend it. See Ryan v. Towar (Mich.) 87 N. W. 644, 55 L. R. A. 310, 92 Am. St. Rep. 481; Uthermohlen v. Bogg’s Run Company( W. Va.) 40 S. E. 410, 55 L. R. A. 911, 88 Am. St. Rep. 884, and cases cited. The principle was recognized by this court in Reeves v. French, 45 S. W. 771, 46 S. W. 217, 20 Ky. Law Rep. 220; Schauf’s Adm’r v. City of Paducah, 106 Ky. 228, 20 Ky. Law Rep. 1796; 50 S. W. 42, 90 Am. St. Rep. 220; and Illinois Central Railroad Company v. Waldrop, 72 S. W. 1116, 24 Ky. Law Rep. 2127.

Pences are passing out of use in all of our cities-There are on many vacant lots excavations made for buildings and other purposes — wells-, cisters, vault pits, and the like. The owner of vacant property is not required to fence it, and every one who in the dark goes upon a vacant lot without permission takes the risk of such things. A deep excavation for the foundation of a house or a well or cistern would be practically just as dangerous as the vat in question; *378but the owner of a city lot, who had on it a well, cistern, or privy vault with a defective'cover, would not be held' liable to a stranger who went upon the lot in the night to answer a call of nature, and while there was hurt by reason of the defective covering of the hole, or for want of coverings. The reason for the rule is that the owner owes him no duty. The person who goes upon a vacant lot at night is bound to know that there may be danger in so going upon land that he is not acquainted with, and he takes the risk of what he finds on it. The vat was an essential part of the laundry. It was used to cool the pipes and was near by it. It was no more an instrument of danger than unfenced machinery, or a number of other things which in the cases referred to were held not to make the owner liable.

Judgment affirmed.

Judge NuNN

— Dissenting.

It seems to me the court in its opinion has applied law not applicable to the facts of this case. The quotations' from Thompson and Shearman & Redfield on Negligence, and their quotations from Chief Baron Pollock, are general principles of law, ordinarily applicable, in ordinary cases, to the owners of property, and théir liability to persons injured thereon. But there is another principal of law, which is just and humane, that will not -permit an owner of real estate, with impunity, to place- a death trap, i. e. a vat of scalding water, thereon, and have it exposed at a place where he knows, or has reason to anticipate, that others will likely suffer death or great bodily harm by reason thereof. The contrary of this proposition would be monstrous. Is it possible that in *379Kentucky, wlien one neighbor or person steps a few feet or inches from the highway, upon the land of another, and thereby becomes teclmically a trespasser, he is without the pale of the law, and all protection, or redress for injuries'? This is certainly not the law in. all cases, and under all circumstances. Mr. Thompson, a.s quoted in the opinion, only says this is'the general rule, clearly indicating that under certain circumstances the owner would be responsible for injuries to trespassers. It is evident that Mr. Thompson did not submit to the rigid and harsh rule as taken from Chief Baron Pollock, for in his book on Negligence (section 950) he uses the following language: “On the one hand, the sound view seems to be that the owner or occupier of real property may become liable, on the footing of negligence, to persons who are injured in their persons or their property, through the needless, wanton, or grossly negligent act of exposing other dangerous things upon Ms premises or upon the highway adjacent thereto, attracting children or animals, or endangering the safety *o£*the unwary. * * * The general rule remains that a trespasser or mere licensee, who is injured by a dangerous machine or contrivance on the land of another, cannot recover damages, unless the machine or contrivance is such as an owner may not lawfully erect, or unless the injury was inflicted willfully, wantonly, or through the gross negligence of the owner or occupant of the premises.” In 2 Shearman *&*Redfield on Negligence, section 705, the following appears: “A mere passive acquiescence bn the part of the owner or occupant, in the use of real property by others, does not involve him in- any liability to them for its unfitness for such use. They *380take all risks upon themselves, and have no right to complain of any defect in the premises, even -though caused by the direct act of the owner (e. g., pit sunk in the land), unless the act is malicious, or is committed with notice of the fact that strangers are likely to approach, and without any effort to warn them of the danger, under circumstances which justify a belief that the owner was indifferent to the injuries which might happen to them.”

In the case of Newark Electric Light & Power Company v. Garden, 78 Fed. 74, 23 C. C. A. 649, 37 L. R. A. 725, the court said, in speaking of the liability of the owner of the property to a technical trespasser: “In such a case as this one, its special facts are for consideration, and upon them, and hot solely with reference to the ownership or occupancy of the locus in quo, the question of duty must be determined. ‘It is true that, where no duty is owed, no liability arises. *' ** **But it has been often said duties arise out of circumstances.. Hence, where the owner has reason to apprehend danger, owing to the peculiar situation of his property, and its openness to accident, the rule will vary.’ Hydraulic Works Co. v. Orr, 83 Pa. 332. It makes no difference, where the circumstances give rise to duty, that. the plaintiff was ‘technically a trespasser.’ Schilling v. Abernethy, 112 Pa. 437, 3 Atl. 792, 56 Am. Rep. 320. The true question is: Was he ‘a trespasser there, in a sense that would excuse the defendant for the acts of negligence, * * * whether the owner or occupant of. the premises is liable under any circumstances, and, if so, under what circumstances., for injuries received by a person while on such premises-, and by reason of their dangerous condition? In Union P. *381R. Co. v. McDonald, 152 U. S. 262, 14 Sup. Ct. 619, 38 L. Ed. 434, tlxe question was thus stated, and, answering it, the Supreme Court held that, under the circumstances' of that case, the person injured could not be regarded ‘as a mere, trespasser, for whose safety and protection, while on the premises in question, against the unseen dangers referred to, the railroad company was under no duty or obligation whatever to make provision.’ The fact that, in these cases, the court gave due weight to the circumstances that, in each of them, the person injured was a child, would not justify us in restricting the application of the principle upon which they were decided to cases which present the same peculiarity. The doctrine of all of them is that duty or care may, by reason of the circumstances, be due by the owner of property to one who is technically a trespasser upon it; and the youth of those most likely to suffer from a failure to discharge such duty is simply one of the circumstances which, when present, is to be considered with the rest. ’ ’

See volume 21, Amer. & Eng. Ency. of Law, page 471: “It seems very clear that the doctrine of duty to the particular person injured^ on which so many cases lay stress, is, in fact, only an application of the general rule of natural and proximate causes hereinafter considered. That is to say, the duty, the breach of which is negligence, is to refrain from doing that which will likely cause injury to others, or to do that which, under the circumstances, reasonable prudence requires. An act or ommission from which injurious consequences could hot, in a sense have been foreseen, is not negligence. If therefore, for example, a party invites others-on his premises, he will be held to *382contemplate tilieir presence there, and to know that dangerous conditions or appliances will likely produce injuries. A duty arises, accordingly that the premises shall he reasonably safe for the purposes intended. Where the use of premises is not contemplated, as in tire case of trespassers, the proprietor is not, as a rule, negligent in failing to maintain the premises in a safe condition, for the simple reason that injury to others is not reasonable to anticipate. That this is the controlling principle is further evidenced by numerous cases wherein an owner of premises has been held liable to trespassers, where either their presence thereupon was known or should have been anticipated. It seems misleading in the extreme to state that no duty is owing to trespassers, or licensees, or persons not on the premises by invita^ tion, express or implied. No duty is owing only where .injuries should not reasonably have been apprehended. The cases, however, for the most part, discuss the question with reference to the duty owing to persons in particular situations with reference to the property or premises on which the injuries occurred, rather than their situation with reference to the likelihood of injuries within the range of contemplation of the party sought tó be charged with liability therefor.

See, also, next page (472) which is as follows: “A number of cases lay down the rule 'that an owner of premises owes no duty with reference to the safety or immunity from injuries of trespassers ' thereon. Other authorities declare that the liability of a proprietor in such circumstances is'only that he shall not be grossly negligent, and shall abstain from the infliction of injuries by active misconduct or wanton *383ness, or intent and purpose to harm. Bnt the preferable view is believed to be that a party’s liability to trespassers depends on the former’s contemplation of the likelihood of thpir presence on the premise®, and the probability of injuries from contact with conditions existing thereon. While, as a rule, a party will not be deemed to anticipate the commission of a willful wrong, yet where, under the circumstances, a technical trespass may reasonably be anticipated, the owner of premises will be liable for a failure to take reasonable precaution to prevent injuries to the trespassers.”

See, also, Railway Co. v. Fitzsimmons, 31 Am. Rep. 208; Schilling v. Abernethy (Pa.) 3 Atl. 792, 56 Am. Rep., 322; Cauley v. Railroad Co., 40 Am. Rep., 667; Insurance Co. v. Groom, 27, Am. Rep. 689; and Plummer v. Dill (Mass.) 31 N. E. 128, 32 Am. St. Rep. 463. These authorities all recognize the general rule as stated in the opinion, but also announce the rule to be that, when the owner of land makes an excavation or other dangerous thing thereon, at a place where persons are likely to he injured by reason thereof, and the owner has reason to anticipate such injuries, and fails' to- provide reasonable means to protect them from injury, he is responsible, although the injured persons are technical trespassers. This rule was also approved by this court in the case of Reeves v. French, 45 S. W. 771, 46 S. W. 217, 20 Ky. Law Rep. 220. Reeves sued French for damages for injuries received by reason of his falling into a chute or cellar, under French’s house. Reeves claimed he fell in from the sidewalk. French contended that Reeves left the street voluntarily, and walked across a vacant lot until he arrived a.t the cellar, which was *38410 or 12 feet from the street, when- he carelessly and negligently fell into it. The court in that case referred to Thompson on Negligence, and Reeves being a trespasser and voluntarily leaving the sidewalk, and falling into the cellar 12 feet from the street, and denied his right to recover; hut the court in arriving at this conclusion used the following significant language, which is peculiarly applicable to the case at bar: ‘ ‘ There was no proof in the record which tended to show that there was any travel along French’s house adjoining the vacant lot, or that French had the slightest reason to believe that any one in passing over the vacant lot would fall into the chute on that side of the house.”

The proof in this case shows that this vat was 12 feet long, 3 feet wide, and 6 feet deep, and was filled at all times with boiling or scalding water, which was level with the surrounding ground, and one end of the vat was less than 4 feet from the sidewalk. It was not inclosed in any way, nor was there anything to give warning of its presence to persons approaching it. It was situated near the center of a city containing 25,000 or 30,000 inhabitants-, much travel near it, and in a place which would attract persons, to enter after dark, for the purpose stated in the opinion. The proof shows that appellant had no knowledge of the vat, and that appellee’s manager had been warned of the danger to persons in leaving it uninclosed and exposed; and also appellant offered to prove that another person, previous to appellant’s injury, had fallen into the vat, and received injuries in the same way. The court refused to allow this proof, but it was competent. In view of this evidence, the case should have been submitted to the jury, on *385the issues made, and an instruction given to the effect that, if the jury believed from the evidence that this vat of scalding water was so near the street or sidewalk and at a place where persons would likely be injured by falling into it, and if they further believed that the defendant knew, or had reasonable grounds to anticipate, that persons would approach and fall into it, and defendant failed to use or exercise ordinary care to inclose or cover it, and protect persons from injury by falling into it, then the jury should find for plaintiff.

For these reasons, I dissent from the opinion of the court.