Weitzmann v. A. L. Barber Asphalt Co.

Werner, J.

There are two questions in this case which survive the unanimous affirmance of the judgment entered upon the verdict, and they arise upon exceptions taken to the charge of the learned trial court in submitting the case to the jury. The charge, so far as material to the questions thus raised, was as follows: “¡Now, if a person’s premises under ordinary circumstances, are so situated that a person walks upon them and there is a dangerous part of them, a hole for instance, or anything of that kind, and he falls into it, he being at the time a trespasser, going there without permission, the owner of the premises is not liable for anything. If in this particular instance the boy had fallen into the hole of that pontoon or float, the defendant in this action would not be liable at all, because that would be a danger that a person going upon the premises naturally assumed. But this case presents a different situation. Here was a danger that existed at one moment and did not exist at another. Here was a line drawn across there from one point to another, that at one time it would be so high that it would not touch the boy, an object passing over it would not touch him; at one time no object is going over it and at another time the position of the line would change and at the rate of a mile a minute a heavy object would be shot over it. You are to decide whether, with that situation, about which there is no dispute here, the defendant in this action took the necessary precaution to see that people were not injured in any way coming in contact with objects moving over it. It was a different situation to *456 ray mind, and I so charge you, than where it was a stationary danger or a danger that would be present all the time. It was more in the nature of a projectile tired from some gun or instrument which suddenly shot across the premises.” At the conclusion of the charge, the defendant’s counsel took the following exception:

“ I except to your honor’s charge, or that part of it in which you stated that the circumstances of this case present a situation different from a stationary danger, or words to that effect, and your honor’s charge in regard thereto.” Later the defendant’s counsel said: “ It is my theory that the defendant owed no duty to keep people off from that property ; that if people came there they took all the risks in connection with its transferring of the barrels over this cable, and I ask you to charge that.” The court declined to so charge and the refusal was excepted to.

While the locus in quo is not very accurately or clearly described, we think it is fairly to be inferred from the record that the float upon which the plaintiff was when the accident occurred, was not upon the land leased by the defendant, but was in Front street, so called, on the land below high-water mark bordering upon the leased property. Bearing this in mind, it will be noted that under the charge of the trial court the case was submitted to the jury upon the assumption that the accident happened on the premises actually, occupied and controlled by the defendant. The jury were instructed, in effect, that if the accident happened upon the property leased or controlled by the defendant it would be liable if it did not take sufficient precaution to warn trespassers of the danger to be apprehended. We think the learned trial court misapprehended the rule governing the liability of the defendant upon that assumption. The defendant had the undoubted right to maintain the apparatus in question on its property, and while it was probably much more dangerous than stationary machinery, we do not think that circumstance altered the rule with respect to its liability towards mere trespassers or bare licensees. As to such persons the well-settled rule is that the only duty of the owners or occupiers of the land is to *457 abstain from inflicting intentional, wanton or willful injuries.

(Magar v. Hammond, 183 N. Y. 387 ;

Downes v. Elmira Bridge Co., 179 id. 136;

Birch v. City of New York, 190 id. 397.) Neither is this case within the rule that an owner of property is liable where he places an engine of destruction upon his land for the purpose of injuring trespassers, such as spring guns and kindred devices.

(Bird v. Holbrook, 4 Bing. 628;

Hooker v. Miller, 37 Iowa, 613 .)

Nor were the instructions to the jury appropriate to a case where the person injured was not upon the property leased by the person charged with inflicting the injury, but upon adjoining premises. Such a case involves still another rule than either of those above referred to. If an owner or occupier of land uses upon it appliances, devices or methods that may cause injury to persons upon adjoining premises, or in public places, such owner or occupier owes to such persons the duty to take reasonable precautions to avoid injuring them. An illustration of this last-mentioned rule is found in Driscoll v. Newark & R. Lime & Cement Co.

( 37 N. Y. 637 ), where the plaintiff was going along a footpath which ran across defendant’s property, and was injured by stones thrown from a blast in defendant’s quarry. It did not clearly appear in that case whether the plaintiff, at the time of the accident, was upon the defendant’s property or upon adjoining premises. In affirming a judgment for the plaintiff this court held that the question whether the defendant had taken sufficient precautions to warn persons who might reasonably be anticipated to be within range of the stones thrown from the blast was properly submitted to the jury. Other cases involving the same principle are Wilson v. Am. Bridge Co.

( 74 App. Div. 596 ) and Wittleder v. Citizens' El. Ill. Co.

(47 id. 410;

S. C., 50 id. 478). Whether the defendant did take such precautions as are suggested by this rule, assuming that there was a question whether the plaintiff was upon its land or not, should have been submitted to the jury under instructions clearly pointing out the defendant’s duty and liability in such circumstances.

*458 It is practically impossible to decide upon the record now before us just what means of access to the float were open to the plaintiff or others, either across the land leased by the defendant or in other ways. The trial court did submit to the jury the question whether, under the circumstances, the defendant took sufficient precautions to avoid accidents to persons coming upon the defendant’s premises. But this must be taken in connection with the erroneous instruction that the plaintiff could recover even though he were a trespasser. This was an erroneous view of the law as applicable to the situation assumed by the court to have existed at the time of the accident. It may be that the jury understood that the plaintiff was not upon the defendant’s land at the time of the accident, but that was clearly not the theory upon which the learned trial judge instructed the jury.

The judgment appealed from should be reversed and a new trial granted, with costs to abide the event.

Cullen, Ch. J., Gray, Edward T. Bartlett, Haight, Willard Bartlett and Hiscook, JJ., concur.

Judgment reversed, etc.