
    Kelley v. City of Columbus.
    1. A city is not liable for an injury resulting from the unsafe or dangerous condition of lands adjacent to a street where the place of danger is so far from the street that no injury can result to persons in the ordinary and proper use of the street.
    2. The owner of land is not liable for injury resulting from the unsafe or dangerous condition of his premises, to persons who go upon them without invitation express or implied.
    3. The fact that a pavement was continuous from a sidewalk on a street over the adjacent lands to the place of danger, was not, of itself, an implied invitation to a person on the sidewalk to go upon the adjacent lands.
    Errol to the District Court of Franklin County.
    The original action was brought by the plaintiff in error against the city of Columbus for damages for injury received, by falling into an open area on the east side of the city building of the defendant.
    The city building fronts northward upon State street, and an open area extends along the east side of the building northward to a point about thirty feet from the south limit of the street. The area is about five feet in width and about five feet deep below the surface of the adjacent lot. On the east side of the area is a wall up to the surface of the ground and parallel with the east wall of the building. The purpose of the area is to afford light and air to the rooms in the basement of the building. There was no walk or passage way of any kind across the lot in any direction, nor was there any door or other opening, except windows, in the open area on the east side of the building. The front wall of the first story of the building was about twenty feet from the south side of the street, and above the first story the front wall extended to the south line of the street. The entrance to the first story was over a stone pavement which was continuous from the sidewalk to the front wall, about twenty feet from the street. This pavement extended around the corner of the building about twelve feet along the east side of it to the north end of the open area.
    The plaintiff with three other men had been at a theater in the neighborhood of the city building, and some time after eleven o’clock at night going from the theater to a hotel, the American House, the plaintiff passing along the street on the pavement in front of the city building turned aside and walked across the pavement and along the east side of the building in the darkness to urinate. When he had reached a point about thirty feet from the south side of the sidewalk he fell into the open area and received the injury for which the action is brought. The record shows that the plaintiff had no business on the city lot with any person, that he did not go there for any purpose except to urinate in the darkness on the east side of the building, and that lights were provided and burning in front of the building to light the approaches to the entrance from the pavement; but the lights did not light up the east side of the building far enough from the street to show the area along the east side of it.
    Upon the trial in the Common Pleas on the motion of the defendant after the plaintiff had rested his case, the court arrested the testimony from the jury and gave judgment for the defendant. This judgment was affirmed by the District Court. It is now sought to reverse the judgment of both courts.
    
      
      Isaiah Pillars, with whom were Taylor Taylor, for plaintiff in error.
    I. A municipal corporation is liable for all injuries to persons, who are not guilty of contributory negligence, occurring by reason of defective streets, alleys, sidewalks, drains, sewers, public buildings and grounds, arising either from improper construction or want of repair; or from obstructions or excavations unguarded, in or near public highways, and of which defects, obstructions, or excavations the corporate authorities would reasonably be bound to take notice. Russell v. Men in the County of Devon, 2 Term Rep., 667; Commissioners, &c., v. Mighels, 7 Ohio St., 110; Western College v. City of Cleveland, 12 Ohio St., 337; Weightman v. City of Washington, 1 Black, 39; Nebraska City v. Campbell, 2 Black, 290 ; Barnes v. City of Columbia, 91 U. S., 540, and authorities cited: Wharton on Negligence, § 959; Rev. Stats., § 2640.
    II. The city of Columbus being the owner and having the management of the City Building referred to in the case, and being the owner of the adjoining premises in which the excavation existed, into which the plaintiff fell, it is held answerable in the same manner, and under the same rules as a private owner would be under like circumstances. See Oliver v. Worcester, 102 Mass., 499, and authorities there cited. Mill v. Boston, 122 Mass., 344 ; Providence v. Clapp, 17 How., 161; 22 Penn. St., 54.
    III. A municipal corporation is answerable for injuries resulting to travelers or pedestrians who are without fault, by reason of obstructions, open areas, excavations or pitfalls outside the line of the highway, but adjacent or near thereto. Clark v. Fry, Ohio St., 358; Railroad Co. v. Bingham, 29 Ohio St., 368; Barnes v. Ward, 67 Eng. C. Law, 393; Firmstone v. Wherley, 2 D. & L., 208, Pollock, B.; Corly v. Hill, 4 C. B., U. S., 556; Hargreaves v. Deacon, 25 Mich., 5; Young v. Harvey, 16 Ind., 314; Mullen v. St. John, 57 N. Y., 567; Wood on Nuisances, §§ 273, 279, 280, 328, and authorities there cited; also §§ 329 and 330; also Shearman and Redfield on Negligence, §§ 359, 360, 383, n. 4, 390, 391; Mason v. Town of Derby, 37 Conn., 298; City of Norwich v. Breed, 30 Conn., 535; Houfe v. Town of Fulton, 29 Wis., 296; 30 Ind., 53; 53 Mo., 290 ; 34 Iowa, 41; 35 Ill., 58; Chicago v. Gallagher, 44 Ill., 295 ; Temperance Hall Association v. Giles, 33 N. J., 260; Dillon on Municipal Corporations, § 788.
    IY. Where the owner of premises invites another to come upon the same, either expressly or by implication, he cannot permit anything in the nature of a snare to exist thereon, which results in injury to a person who avails himself of the invitation or permission. Wood on Nuisances, §§ 288-9; Beck v. Carter, 68 N. Y., 283; Bennett v. Railroad Co., 102 U. S., 577; Cooley on Torts, 604-7.
    
      Alexander Krumm and C. T. Clark, City Solicitors, and James H. Wright, for defendant in error.
    In order that the plaintiff may recover under the circumstances, he must be able to show, that this open area was substantially adjoining some public way, along or over which the public have a right, and are accustomed to travel. 29 Ohio St., 368; Roscoe’s Ev. at Nisi Prius, 685 ; Beck v. Carter, 68 N. Y., 283; Daily v. Worcester, 131 Mass., 452. And whether it is substantially adjoining or not, is a question of law for the court, and will not be left for the jury to determine. Hardcastle v. Yorkshire R. R. Co., 4 H. & N., 67; Hadley v. Taylor, Law Rep., 1 C. P., 53; Barnes v. Ward, 9 C. B., 392; Hounsell v. Smith, 7 C. B., N. S., 731.
    And if the excavation or open area is at a considerable distance from the public path, so that a person proceeding along such public way, might not, by making a false step, or being affected with sudden giddiness, be thrown into the excavation, no liability will arise. Saunders’ Neg., 61; 4 H. & N., 67; Shearman & Redfield, sec. 505; Barnes v. Ward, 9 C. B., 392; Norwich v. Breed, 30 Conn., 535.
    As to remoteness from highway, see Binks v. Railway Co., 3 Best & S., 244; Blyth v. Topham, Cro. Jac., 158; 
      Daily v. Worcester, 131 Mass., 452; Puffer v. Orange, 122 Mass., 389; Sparhawk v. City of Salem, 1 Allen, 30.
    The plaintiff, upon this phase of his cause, in order to create a liability against the defendant, must show some omission of duty, and to do so, must aver and prove:
    1. That the construction of this paved way was such as to operate as an invitation, allurement, or inducement to the plaintiff, within its obvious purpose and design, to use it as a means of access to that part of the premises of the defendant open to the public.
    2. That, at the time of the injury to himself, he had a lawful occasion to be upon the premises of the defendant, and at the place where the injury occurred, and was proceeding with due care along this paved way to accomplish such purpose. Zoebisch v. Tarbell, 10 Allen, 385; Carleton v. Franconia Iron Co., 99 Mass., 217; Larue v. Farren Hotel Co., 116 Mass., 67; Severy v. Nickerson, 120 Mass., 306 ; Pierce v. Whitcomb, 48 Vermont, 127; Bennett v. R. R. Co., 102 U. S., 577; Corby v. Hill, 4 C. B., N. S., 556 ; Chapman v. Rothwell, El. Bl. & El., 168 ; Barnes v. Ward, 9 C. B., 392; Bolch v. Smith, 7 Hurlst & Norm., 741; Scott v. London Docks Co., 3 Hurlst & Colt, 596; Gautret v. Egerton, Law Rep., 2 C. P., 371; Sullivan v. Waters, 14 Irish C. Law Rep., 460 ; Hargreaves v. Deacon, 25 Mich., 5 ; Kohn v. Lovett, 44 Georgia, 251; Maenner v. Carroll, 46 Maryland, 193 ; Indemaur v. Dames, Law Rep., 2 C. P., 311.
    If, however, the plaintiff had gone to the City Hall for a lawful purpose — for amusement, curiosity or business, yet his negligence as shown by his own testimony was so gross as to preclude any recovery. He had no business to be wandering around in the dart, under the circumstances, without a light. Bolch v. Smith, 7 H. & N., 736 ; Wilkinson v. Fairrie, 1 H. & C., 633; Forsyth v. R. R. Co., 103 Mass., 510; Saunders’ Neg., 80.
   McCauley, J.

The liability of the city for the injury sustained by the plaintiff is contended for upon the principle of the cases of Hargreaves v. Deacon, 25 Mich., 5; Young v. Harvey, 16 Ind., 314; Mullen v. St. John, 57 N. Y., 567; Beck v. Carter, 68 N. Y., 283, and many others, that a municipal corporation is liable for injuries resulting from obstructions, excavations, pitfalls or other dangerous condition of premises outside of the street, but so near to it as to cause injury to persons in the proper and lawful use of the street, and upon the principle also of the cases of Bennett v. Railroad Co., 102 U. S., 577; Sweeney v. Old Colony R. R., 10 Allen, 368; Larue v. Farron Hotel Co., 116 Mass., 67, that the owner of land is liable to persons who go upon it, by invitation express or implied, for injury arising from the unsafe or dangerous condition of the premises.

The plaintiff was walking along the sidewalk immediately before the accident occurred. The place where he fell into the excavation was about thirty feet from the sidewalk or street proper. The north end of the excavation did not come within thirty feet of the street. A person therefore in the ordinary use of the sidewalk would seem to have been out of all possible danger of falling into the excavation. If the excavation had been so near the street that a person had fallen into it while passing on the sidewalk and in the ordinary use of it, a liability for resulting injury would follow. This excavation was so far from the street that it could have caused no injury, except when the person passing along the sidewalk turned out of his way, as the. plaintiff clearly did in this case, and went to it — unless the stone pavement from the sidewalk to the north end of the excavation is to be treated as a continuation of the sidewalk, and the liability of the city is to attach for all places of danger near to the sidewalk thus extended. If the continuation of the stone pavement beyond the street, by its direction and surroundings misled the plaintiff into the belief that he was still on the .street, and if he walked upon it not thinking and having no reason to think he was beyond the street, the liability of the city doubtless would continue. But if he knew, or if from the surroundings he ought to have known that while walking on the stone pavement between the street and the north end of the excavation, he was not in the street, but had turned out of it, he should no longer rely upon protection from dangerous places into which he might wander by following the stone pavement. If he had this knowledge his right to protection from dangerous places to which it might lead him was the same whether he walked on the stone pavement or on the natural surface of the ground. He says in his testimony that when Mr. Beals, who was with him, spoke of urinating, he said, “ Then go off the street, and he then stepped hack on this pavement or walk back.” It is quite clear from this statement that while the plaintiff was walking on the stone pavement, after he left the sidewalk, he knew he was out of and beyond the limits of the street. He did not go to the place where he received the injury because he thought or supposed that while he was going there he was in the street. He knew he was not in the street, and followed the pavement because it led away from the street.

The plaintiff following the stone pavement under these circumstances is not entitled to protection from injury from places of danger adjacent to the pavement as if he had encountered similar dangers in the lawful and proper use of the sidewalk within the limits of the street.

The facts of the case are clearly insufficient to sustain a recovery on the other ground urged by the plaintiff. The facts clearly show that there was no business of any kind carried on upon the lot on which the city building stands, and that there was no path or passage way across the lot, nor anything done or permitted upon the lot which would induce any person to go there for business, curiosity, enter tainment or any other legitimate purpose. Protection against pitfalls, excavations or other dangerous condition of grounds is extended to those only who are there by invitation express or implied.

If business is carried on upon the lot, or any curiosity kept there, open to the public, or any inducement or allurement held out to the public beyond a mere permission to go there, the duty to keep the premises safe arises; but if a lot is left unfenced a person who goes upon it by bare permission because there is no obstruction to keep him off, goes at his own risk. Railway Co. v. Bingham, 29 Ohio St., 364; Beck v. Carter, 68 N. Y., 283. There is no proof in the case to show that there was anything whatever on the city lot to induce or invite any person to go upon or across it for any purpose unless for the purpose for which the plaintiff went there; nor is there any proof that the plaintiff went there upon any business with any person there, or for any purposes whatever except to get into the darkness in the shadow of the building. If there had been a business room in the building, or upon another part of the lot which would have been an implied invitation to the public to go there, it still would not help the plaintiff when he admits that he did not go upon the lot for any such purpose. The fact alone that the stone pavement extended from the street about twenty feet to the front wall of the first story and around the corner of the building about twelve feet along the east side of it, can not be treated as an implied invitation to a person passing along the street to turn aside and follow it, in the darkness, across private property, without any purpose or object that could have been foreseen or anticipated by the owner of the property. If the pavement beyond the limits of the street led to any place where persons on the street might be expected to go for any legitimate purpose, the result would be different.

The city should not be held to foresee or anticipate that persons would leave the sidewalk and go along the side of the building for the purpose for which the plaintiff went there. And if not, the fact that it extended the stone pavement to the open area, or if it had extended it much farther, would not have been, of itself, an implied invitation to the plaintiff or to any person on the street to use the pavement.

Judgment affirmed.  