
    Thomas Cusick, by his Guardian, etc., Resp’t, v. William L. Adams, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed June 4, 1889.)
    
    1. Negligence—Violation of legal duty to exercise care—When LIABILITY FOR DEFECT IN PREMISES DOES NOT EXIST.
    The principle is well settled that where a person comes upon the premises of another without invitation, but simply as a bare licensee, and the-owner of the property passively acquiesces in his coming, if an injury is- • sustained by a mere defect in the premises, the owner is not liable for neglicence, for such person has taken all risk upon himself. The theory of' liability in negligence cases is the violation of some legal duty to exercise-care.
    2. Same—Defective construction of bridge—When owner not liable for.
    In an action to recover damages for injuries resulting from a fall through a hole in a bridge constructed by defendant, where the latter was-not shown to he charged with any affirmative act in relation thereto, that, the dangerous condition of the bridge was not concealed, but was appa rent, it cannot be said that the bridge was, in any case, a trap which rendered innocent persons subject to injury, nor can the defendant be charged with liability.
    
      N. C. Moák, for app’lt; P. D. Niver, for resp’t.
    
      
       See 14 N. Y. State Rep., 281.
    
   Gray, J.

The plaintiff recovered damages against the defendant for injuries resulting from a fall through a hole in a bridge which the defendant had, some years previously, constructed over the Mohawk river to connect an island belonging to him with the city of Cohoes.

The plaintiff was crossing the bridge in order to see some shooting match upon the island. He sustained no-relations with the defendant, and it is not pretended that-the defendant had anything to do with the objects which induced the plaintiff to cross the bridge. He simply used it for his own convenience and pleasure. The right to-recover was sustained at the general term of the supreme court, on the theory that the defendant, by his construction of the bridge and of the approach to it, extended the public highway, to all appearance, over the bridge, and thus misled the plaintiff to his damage. The proof hardly, in my opinion, warrants any such assumption. The city end of the bridge rested on a vacant piece of land and not. on the highway. But even granting that the end of the bridge connected with a highway or street, I do not think that circumstance of sufficient importance by itself to justify our departure from the well settled rule in such cases ; where the defendant, as the owner of the premises whereon a stranger is injured, is sought to be held for the damage.

It is not a question of appearances, nor of what the plaintiff supposed from the appearances, but simply whether the defendant has failed in any duty which he owed to the plaintiff; either, generally, as a member of society, or, particularly, because of any relations subsisting between them. We have here but a question of law upon the proofs. Did the defendant, in constructing the bridge for his own convevience, or purposes, thereby assume any active duty of vigilance to see that those," who went upon it, voluntarily, and by no invitation, express or implied, of his, but simply by his sufferance, were not injured? I do not see how, by my connecting my premises with a public highway, there is imposed any duty upon me to maintain and protect that connection, for a public use. The duty of the' individual is to use his property in such wise as not to injure his neighbor, and he may not maintain a nuisance upon his premises; but this case does not fall within the application of such rules. The plaintiff was an utter stranger to the defendant. He was not upon the bridge by the defendant’s invitation, nor upon any business of his. The evidence does not disclose any reason for his being there at all, with which the defendant was connected or concerned. It does appear that the bridge was used by the public for the purpose of crossing over to the island; but it was not so used by any agreement with the defendant, or with his permission. It was merely by his sufferance that they made use of it.

The principle is now well settled by repeated adjudications, in'this country and in England, that where a person comes upon the premises of another, without invitation, but, simply, as a bare licensee, and the owner of the property passively acquiesces in his coming, if an injury is sustained by reason of a mere defect in the premises, the owner is not liable for negligence, for such person has taken all the risk upon himself. The theory of liability in negligence cases, is the violation of some legal duty to exercise care. Among the numerous cases, I refer to the following, only, as necessary to illustrate the general rule of liability: Gautret v. Egerton, L. R., 2 C. P., 371; Hounsell v. Smyth, 7 C. B., N. S., 743; Burchett v. Hickisson, 50 L. J. Q. B., 101, Ivay v. Hedges, 9 L. R., Q. B. Div., 80; Sutton v. N. Y. C. and H. R. R. Co., 66 N. Y., 243; Larmore v. Crown Point Co., 101 id., 391; Splittorf v. State, 108 id., 205; Donahue v. State, 112 id., 142; Hargreaves v. Deacon, 25 Mich., 1; Severy v Nickerson, 120 Mass., 306; Barker v. Portland Co., 69 Me., 173; Vanderbeck v. Hendry 34 N. J. L., 467.

In Whittaker’s Smith on Negligence (1st Amer. ed.) the cases are collected and the doctrine is discussed. The case of Beck v. Carter (68 N. Y., 292) does not help the plaintiff. In that case there was an affirmative act on the defendant’s part, which contributed to the occurrence. There the owner had long suffered the land to be used by the public, as a part of the highway before his hotel, and, while the hotel stood, it was rather to his advantage to leave the strip of land open to the public. Upon this land the owner had made, an excavation which he left unprotected, and the plaintiff fell in, one dark night. That was a different case from this, where the defendant, on the proof, was not shown either to be advantaged by any use by the public of his bridge, and where he was charged with no affirmative act. He had undoubtedly suffered the bridge to get out of repair. For what reason, or what his interest in its maintenance was, we are not informed, nor are we concerned, and the knowledge is immaterial to the case. We may observe, further, that the dangerous condition of the bridge was not concealed. The holes were very apparent and the bad condition of the bridge had existed for several years. It, therefore, cannot be said that the bridge was in any sense a trap which rendered innocent persons subject to injury.

In the recent case of Ivay v. Hedges (9 L. R., Q. B. Div., 80) the court went very far, in support of the doctrine of non-liability of an owner for injuries occasioned to others, while upon his premises. There a landlord let out a house to several tenants, each of whom had the privilege of using the roof for the purpose of drying their linen. The plaintiff, one of the tenants, while on the roof, slipped and, the rail being out of repair (and known by the landlord to be so), fell through it into the court below.

Lord Coleridge said that, no liability rested upon defendant for not keeping the rail in repair, in the absence of an absolute contract for the use of the roof. He held that “the tenant takes the premises as he finds them.’'

The opinion of Lindley, L. J., in the case of Burchell v. Hickisson (50 L. J., Q. B., 101), is much in point.

I think the general term judgment proceeded upon the wrong theory, and that this case falls clearly within the doctrine laid down by the authorities I have cited. The principle upon which the cases of Larmore v. Crown Point, Splittorf v. The State and Donahue v. State (supra) were decided, is applicable here, and the opinions of Judges Andrews and Roger are instructive reading upon the question of liability raised in this case.

No other question in the case demands our consideration.

The judgment of the supreme court, and of the Albany county court, should be reversed and a new trial had, with costs to abide the event.

All concur.  