
    Williams v. Nashville.
    
      (Nashville.
    
    February 2, 1901.)
    Municipal Corpobations. Liability for injury from rock quarry.
    
    A municipal corporation that maintains a rock quarry within its limits is not liable for an injury sustained by a person who falls into an excavation therein made in removing’ stone, and situated away from the streets, while he, without invitation, express or implied, is passing, by mere license, through the quarry, as a more convient and expeditious way of reaching home than by following the public streets.
    Cases cited and distinguished: Niblitt v. Nashville, 12 Heis., 684; Whirley v. Whitman, 1 Head, 610; Clapp v. Lagrill, 103 Tenn., 164.
    PROM DAVIDSON.
    Appeal in error from Circuit Court, of Davidson County. Jno. W. Ohildeess, J.
    Pitts & Meeks and' TI. C. Lassing for Williams.
    E. A. Peioe and TI. P. McConnico for Nashville.
   Beaed, ■ J.

This is an action to recover damages for personal injuries sustained, as is alleged, from the negligence of the defendant. The case ivas disposed of on demurrer. .The declaration averred that the city of Nashville, at the' time of the injury ivas, and for many years prior thereto Lad been, the owner of a tract of land contiguous to a public street in the populous part of the city, which it had used as a rock quarry, upon and from which it had quarried, and under contracts with others, had caused to be quarried a large amount of stone, in the course of which employment, deep and dangerous excavations were made abutting upon and near to a public street and certain roadways and passageways which are through and across this land, and over which it knew the citizens of Nashville were accustomed to pass, which excavations the city permitted to remain unfenced, unguarded, and without signals or warnings of any kind. It is further averred that plaintiff, while returning at night from the central part of the city to his home, located beyond the premises in question, and being ignorant of the dangerous excavations, in- ‘‘attempting to cross the premises along a pathway thereon leading towards his home from the point” where he had disembarked from a ear on the public street nearest his home, without fault or negligence on his part, fell into one of these excavations and received personal injuries, for which he sued.

One of the grounds of the demurrer sustained by the Court below, in substance, is that upon the facts averred the plaintiff was using the pathway in question for his own convenience, without invitation from the defendant, and in doing so took the risk of the injury from these excavations.

It will he observed that the case made in the declaration is not that of a party, who while using ordinary care is injured by accidentally falling into an excavation made by the owner on his own land, but so near to a highway as to render it unsafe to one passing over it, as in Barnes v. Ward, 9 C. B., 392; Norwich v. Breed, 30 Conn., 535; Niblitt v. Nashville, 12 Heis., 684. Hor does it involve the rule of law upon which the proprietor is held liable for an injury resulting from the use of dangerous but alluring and unguarded machinery erected by him on his own land, sustained by one unable to judge of the danger of a careless use of it, as in Sioux City Railroad v. Stout, 17 Wall., 657, and Whirley v. Whitman, 1 Head, 610. But it is rather that of one who leaving a public street voluntarily, for his own convenience, undertakes to cross the land of defendant, excavated by it and by those authorized by it to do so, for a legitimate purpose, by a way which with the acquiescence of, but without invitation from the defendant many persons had used, and in thus passing over it accidently falls into one of the excavations, being seriously injured, seeks to recover damages for such injury.

While it is true that when the owner, expressly or by implication, invites a person to come upon his land, he will be liable to such person, who, while exercising ordinary care, receives an injury from any snare or pitfall existing thereon by the owner’s contrivance or consent. On the other hand, it is equally true that a bare licensee takes the risk of accidents in using the premises in the condition in which they are. Beck v. Carter, 68 N. Y., 283 (S. C., 23 Am. Rep., 175).

In the discriminating opinion delivered in that case two English cases are referred to which admirably illustrate the distinction indicated above, to wit, Corley v. Hill, 4 C. B. (N. S.), 556, and Hounsell v. Smyth, 7 Id., 731. We adopt the statement of these two cases from the body of that opinion. In Corley v. Hill the owner of land upon which was a private road leading to an asylum on his premises, for the use of persons going there, gave permission to a third person to place materials pn the road. The servant of the plaintiff, in. the night time, while driving his master’s horse over this road on his way to the asylum, and using due care, ran upon and against the materials placed in the. way by the defendant’s permission, and the horse Avas injured. The defendant was held to be liable. Coekburn, 0. L, said: “The proprietors held out an allurment whereby the plaintiff was induced to come upon the place in question; they held out this road, to all persons having occasion to proceed to the asylum, as the means of access thereto. Could they have justified the placing an obstruction across the way, whereby an injury was occasioned to one using the way by their invitation ? Clearly they could not.”

In Hounsell v. Smyth the defendant was seized of certain waste land, upon which was an unin-closed quarry near and between two public highways, and the declaration -averred that all persons having occasion to pass over the waste land had been accustomed to go across the same with license and permission of the owners, and that the plaintiff having in the night time taken the wrong road, was crossing the waste for the purpose of getting to. the other, and not being aware of the existence or locality of the quarry, and being unable, by reason of the darkness, to see it, fell in and was injured. It was held that the declaration disclosed no cause of action. The Court said: “Ho right is alleged; it is merely stated that the owner allowed all persons who chose to do so, for recreation or for business, to go upon the waste without complaint; that they were not churlish enough to interfere with any person who went there. He must take the permission with its concomitant conditions and, it may be, perils.”

The distinction between these two cases and the classes which they respectively represent, is that in the one the owner had imposed upon himself by his invitation to the public to use his private way for the purpose for which it was constructed, the duty of exercising ordinary diligence to see that no unnecessary peril came to one accepting such invitation, while in the other the owner assumed no such duty towards those who availed themselves of a mere acquiescence on his part of their use of such a way. Eor the theory of all negligence cases is that the defendant has violated some legal duty he owed plaintiff. So where such duty does not exist, however unfortunate the injured may be, and free from negligence, yet he must alone bear the consequences; he cannot impose them upon one under no obligation in lav/ towards him, save not to inflict, directly or indirectly, wanton injury upon him.

Erom the declaration in the present case it is apparent the plaintiff was a stranger to the defendant. He was on the land of the latter -without an invitation of any kind, and for ■ his own convenience, and while it does appear that the way which he was using was also used at its pleasure by the public, this was only done by the passive acquiesence of the defendant. In such case it is well settled by adjudications in England and America that the party injured under such circumstances is a mere licensee, and he must bear the consequences of his own misfortune. Cusick v. Adams, 115 N. Y., 55; 12 A. S. R., 772.

This distinguishing principle was recognized in Clapp v. Lagrill, 103 Tenn., 164, where will be found a full citation of- cases.

The judgment of the Circuit Court is affirmed.  