Gray, contra. The declaration shows a duty on the part of the defendant, and a breach of that duty. It is immaterial whether the injury takes place in a private house, or in a shop, or in a street; the only question is whether the person who complains was lawfully there? The case is similar in principle to that of Randleson v. Murray, 8 A. & E. 109, which decided that a warehouseman who lowers goods from his warehouse is bound to use proper tackle for that purpose. [Alderson, B. It is the duty of every person who hangs anything over a public way to take care that it is suspended by a proper rope.] Whether it be a private house or a shop, a duty is so far imposed on the occupier to keep it reasonably secure, that if a person lawfully enters, and through the negligence of the occupier in leaving it in an insecure state receives an injury, the occupier is responsible. Here it is alleged that the defendant invited the plaintiff to come into the hotel as a visitor; that shows that he was lawfully there. [Pollock, C. B. The position that an action lies because the plaintiff was lawfully in the house, cannot be supported; a servant is lawfully in his master’s house and yet if the balusters fell, whereby he was injured, he could not maintain an action against the master. If a lady who is invited to dinner goes in an expensive dress, and a servant spills something over her dress which spoils it, the master of the house would not be liable. Where a person enters a house by invitation the same rule prevails as in the case of a servant. A visitor would have no right of action for being put in a damp bed, or near a broken pane of glass, whereby he caught cold. Alderson, B. The case of a shop is different, because a shop is open to the public; and there is a distinction between persons who come on business and those who come by invitation.]
Pollock, C. B. We are all of opinion that the declaration cannot be supported, and that the defendant is entitled to judgment. I do not think it necessary to point out the reasons by which I have come to that conclusion; because it follows from the decision of this Court (Priestley v. Fowler, 3 M. & W. 1) that the mere relation of master and servant does not create any implied duty on the part of the master to take more care of the servant than he may reasonably be expected to do of himself. That decision has been followed by several cases,[[167]] and is now established law, though I believe the principle was not recognized until recent times. The reason for the rule is that the servant undertakes to run all the ordinary risks of service, including those arising from the negligence of his fellow-servants. The rule applies to all the members of a domestic establishment, so that the master is not in general liable to a servant for injury resulting from the negligence of a fellow-servant; neither can one servant maintain an action against another for negligence whilst engaged in their common employment. The same principle applies to the case of a visitor at a house; whilst he remains there he is in the same position as any other member of the establishment, so far as regards the negligence of the master or his servants, and he must take his chance with the rest.
Alderson, B. I am of the same opinion.
Bramwell, B. I agree with Mr. Gray to this extent, that where a person is in the house of another, either on business or for any other purpose, he has a right to expect that the owner of the house will take reasonable care to protect him from injury; for instance, that he will not allow a trap-door to be open through which the visitor may fall. But in this case my difficulty is to see that the declaration charges any act of commission. If a person asked another to walk in his garden, in which he had placed spring-guns or men-traps, and the latter, not being aware of it, was thereby injured, that would be an act of commission. But if a person asked a visitor to sleep at his house, and the former omitted to see that the sheets were properly aired, whereby the visitor caught cold, he could maintain no action, for there was no act of commission, but simply an act of omission. This declaration merely alleges that “by and through the mere carelessness, negligence, default, and improper conduct of the defendant,” the glass fell from the door. That means a want of care,—a default in not doing something. The words are all negatives, and under these circumstances the action is not maintainable. I doubted whether the words “carelessness, negligence, and improper conduct,” &c., might not mean something equivalent to actual commission, but on the best consideration which I can give the subject, it appears to me that they do not mean that, but merely point to a negative. If I misconstrue the declaration it is the fault of those who so framed it.
Judgment for the defendant.[[168]]
BEEHLER v. DANIELS
Supreme Court, Rhode Island, May 1, 1894.
Reported in 18 Rhode Island Reports, 563.
Trespass on the Case. Certified from the Common Pleas Division on demurrer to the declaration.
Stiness, J. The plaintiff seeks to recover for injury caused by falling into an elevator well in the defendants’ building, which he entered in the discharge of his duty, as a member of the fire department of the city of Providence, in answering a call to extinguish a fire. The negligence alleged in the first count is a failure to guard and protect the well; and in the second count such a packing of merchandise as to guide and conduct one to the unguarded and unprotected well. The defendants demur to the declaration, alleging as grounds of demurrer that they owed no duty to the plaintiff; that he entered their premises in the discharge of a public duty and assumed the risks of his employment; that he was in the premises without invitation from them; and that they are not liable for consequences which they could not and were not bound to foresee.
The decisive question thus raised is, Did the defendants, under the circumstances, owe to the plaintiff a duty, for failure in which they are liable to him in damages? The question is not a new one, and we think it is safe to say that it has never been answered otherwise than in favor of the defendants. The plaintiff argues that it was his duty to enter the premises, and, consequently, since an owner may reasonably anticipate the liability of a fire, a duty arises from the owner to the fireman to keep his premises guarded and safe. An extension of this argument to its legitimate result, as a rule of law, is sufficiently startling to show its unsoundness. The liability to fire is common to all buildings and at all times. Hence every owner of every building must at all times keep every part of his property, in such condition, that a fireman, unacquainted with the place, and groping about in darkness and smoke, shall come upon no obstacle, opening, machine or anything whatever which may cause him injury. This argument was urged in Woodruff v. Bowen, 136 Ind. 431; but the court said: “We are of the opinion that the owner of a building in a populous city does not owe it as a duty at common law, independent of any statute or ordinance, to keep such building safe for firemen or other officers, who, in a contingency, may enter the same under a license conferred by law.”
Undoubtedly the plaintiff in this case had the right to enter the defendants’ premises, and the character of his entry was that of a licensee. Cooley on Torts, *313. But no such duty as is averred in this declaration is due from an owner to a licensee. This question is discussed in the case just cited, as also in many others. For example, in Reardon v. Thompson, 149 Mass. 267, Holmes, J., says: “But the general rule is that a licensee goes upon land at his own risk, and must take the premises as he finds them. An open hole, which is not concealed otherwise than by the darkness of the night, is a danger which a licensee must avoid at his peril.” So in Mathews v. Bensel, 51 N. J. Law, 30, Beasley, C. J., says: “The substantial ground of complaint laid in the count is, that the defendants did not properly construct their planer, and, being a dangerous instrument, did not surround it with proper safeguards. But there is no legal principle that imposes such a duty as this on the owner of property with respect to a mere licensee. This is the recognized rule. In the case of Holmes v. Northeastern Railway Co., L. R. 4 Exch. 254, 256, Baron Channell says: ‘That where a person is a mere licensee he has no cause of action on account of the dangers existing in the place he is permitted to enter.’” In Parker v. Portland Publishing Co., 69 Me. 173, this question is fully examined, the court holding it to be well settled, if the plaintiff was at the place where the injury was received by license merely, that the defendant would owe him no duty and that he could not recover. See also Indiana, etc., Railway Co. v. Barnhart, 115 Ind. 399; Gibson v. Leonard, 37 Ill. App. 344; Bedell v. Berkey, 76 Mich. 435.