Benson v. Baltimore Traction Co.

Roberts, J., delivered the opinion of the Court. On the 3rd of February, 1892, John W. Saville, Principal of the Baltimore Manual Training School, addressed a note to T. Edward Hambleton, the President of the Baltimore Traction Company, in the following words: “Baltimore Manual Training School, 311 to 321 Courtland street, John W. Saville, Principal. February 3rd, 1892. “President Hambleton, Sir: — Will you kindly grant permission to the graduating class of this school to visit the two power-housea of the Baltimore Traction Company ? Respectfully, John W. Saville.” ⁵³⁷ Upon which there was endorsed the following: “Admit the class as requested.

T. Edward Hamblkton, President. ” The appellant, who was then a student in the Manual Training School of Baltimore, and a member of the graduating class therein, together with thirty or more scholars and teachers of said school, on the 12th of February, 1892, visited the power-house of the appellee, located on Druid Hill avenue in Baltimore City, and were admitted, and whilst passing through the building the accident happened, which occasioned this suit. On the 28th of October, 1892, the appellant brought suit in the Court below, and on the 16th of February, 1893, filed his declaration, embodying therein the facts relied upon, and claiming damages for the injury, which his son had sustained by the alleged negligence of the appellee. The appellee upon the filing of the declaration demurred thereto, and on issue joined thereon, the Court sustained the demurrer, and entered judgment for the appellee. This appeal is taken from the ruling and judgment of the Court below on the demurrer.

The declaration contains two counts, in the first of which are the following averments: 1. “That the plaintiff, on or about the 12th day of February, 1892, whilst a student in the Manual Training School of Baltimore, and a member of the graduating class therein, was, with thirty odd other scholars and the teachers thereof, granted special written permission by the defendant company to visit a certain power-house situate in said city, the property of the defendant, for the purpose of viewing and examining the works and machinery therein contained. “That on the day in question, in pursuance of said authority, the plaintiff, in company with his fellow- ⁵³⁸ students.and some of tíre teachers of said school was, after the presentation of said written permission to defendant’s agent, admitted to the said power-house for the purpose aforesaid, and was thereupon taken in charge by one of defendant’s agents, who proceeded to show the plaintiff and his companions through the ground floor of said premises, and who afterwards conducted them to the cellar or basement of said building for the purpose of showing them the workings of the cable and other machinery therein contained, and for a while remained with the said party, warning them as they proceeded and approached certain machinery to guard against particular portions thereof, which he pointed out to them as dangerous; that afterwards, and whilst in the midst of said examination, the said employe abandoned the said party and left them, instructing them, as he did so, to look around for themselves, without however, warning them of any further danger; that afterwards, whilst thus looking around for themselves upon said premises, in the exercise of due care and caution, and without fault on his part, the plaintiff suddenly, without warning or mea'ns of preventing it, fell into a vat or sink some two-and-a-half feet deep, full or nearly so of boiling water, which vat or sink was flush with the floor and uncovered, and situated in a part of the building insufficiently lighted, but through which portion of the premises the course of “the examination permitted by defendant led plaintiff and his companions, of which vat or sink he had no previous knowledge, and which, owing to the insufficient lighting of the saidcellar or basement, plaintiff was unable to see in time to prevent falling therein, of which pitfall the company nor its agents had warned him to guard against, although its existence and dangerous character and the plaintiff’s ignorance thereof were known to the defendant, and in consequence of the neglect of the defendant, he was so badly scalded about ⁵³⁹ the lower part of his body, that he has been for a long time confined to his bed, and is sick and disabled, and has been permanently injured and rendered unfit to earn his livelihood by labor as heretofore. The second count contains substantially the same averments as those set out in the first, and for the purposes of this case it is not necessary to repeat them. The demurrer concedes the facts presented by the appellant's pleading, and the question for our consideration is, do the facts stated entitle the appellant to maintain this action for the recovery of damages for the alleged wrongs which he claims to have sustained? The authorities appear to have classified the subject under three heads, to wit: 1.

Bare licensees or volunteers. 2. Those who are expressly invited or induced by the active conduct of the defendant to go upon the promises. 3. Customers and others who go there on business with the occupier. Each case must largely depend upon the particular circumstances attending the occurrence, and it is not infrequently found to be difficult to determine whether the injured party is a mere licensee, or whether he is on the premises by the implied invitation or enticement of the owner or occupier.

Those who enter on business usually experience but small difficulty in defining their legal stains. There ought to be no controversy in this case as to the object which the appellant had in seeking admission to the power-house of the appellee. It certainly was not Cor the benefit of the appellee that the visit was made, but it was clearly a mere license from the appellee, assenting to the visit of the appellant and his schoolmates, to an examination of the works and machinery in the powerhouse, for the purpose of gratifying their curiosity, or of improving their knowledge of the workmanship of the machinery, and of the manner in which such power was ⁵⁴⁰ applied in moving the cars upon the streets of the city. There could not have been under these circumstances any possible opportunity for misconception as to the intention of the respective parties.

Nor do we perceive where any benefit could have accrued to the appellee by the visit of these young men on the occasion mentioned. When the president of the appellee endorsed on the application of Mr. Saville, “admit the class as requested,” could any reasonable inference be drawn from such endorsement that the appellee was seeking -to entice, allure or induce the plaintiff and his associates to visit the power-house in question ? The building in question was not constructed or used for exhibition or display, and the permission granted could only have been intended to give to the graduating class of the Manual Training School an opportunity to examine the application of vast power, obtained through the instrumentality of machinery of unusual character, and thus supply the class with an interesting object lesson in practical mechanics. The vat or sink in question was one of the appliances in use by the appellee at the time of the happening of the accident, for the purpose of aiding in the accomplishment of the work to be done, and was not placed there as a man trap.

That it was located in a part of the building which was insufficiently lighted to enable the appellant to see it in time to prevent falling therein, was not negligence fairly imputable to the appellee, but rather was it negligence on the part of the appellant to grope about in a house dedicated to the use of dangerous machinery and appliances located in an insufficiently lighted place. Take as illustrating this view, the case of Pierce vs. Whitcomb, 48 Verm., 127 , where the plaintiff went at night to defendant’s home to buy oats. The defendant had no oats which he wished to sell, but by reason of the plaintiff’s importunity he agreed to sell him some, and they went together to the barn where the oats were kept. ⁵⁴¹ While the defendant was seeking a measure, the plaintiff walked about the barn in the dark, and fell through a hole in the floor and was severely injured. The Court held that travelling about the granary in the dark not only contributed to the injury but was the cause of it, and that defendant was not liable.

It has not been contended in this case that the vat or sink was such that the appellee in the conduct of its business might not lawfully construct or use, nor is it claimed that the injury happened through the wilful or wanton misconduct or gross negligence of the appellee. As already stated it is oftentimes difficult to determine whether the circumstances make a case of invitation or only of mere license. “The principle,” says Mr. Campbell in his Treatise on Negligence, “appears to be that invitation is inferred where there is a common interest or mutual advantage, whilst a license is inferred where the object is the mere pleasure or benefit of the person using it.” Equally pointed is the language of Mr. Chief Justice Bigelow in delivering the opinion of the Court in Sweeny vs. Old Colony and Newport Railroad Co., 10 Allen, 372 , where he says: “In order to maintain an action for an injury to person or property by reason of negligence or want of due care, there must be shown to exist some obligation or duty towards the plaintiff which the defendant has left undischarged or unfulfilled. This is the basis on which the cause of action rests. There can be no fault or negligence or breach of duty where there is no act or service or contract, which a party is bound to perform or fulfil.

All the cases in the books in which a parry 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 to do an act by which a legal duty or ⁵⁴² obligation has