here. So is the wrong of nuisance considered elsewhere." 73 § 313. Liability of Municipality for Ice on the Sidewalk. It is perhaps an undisputed general proposition frequently asserted by courts that mere slipperiness arising from a smooth surface of snow and ice on a sidewalk does not render the city liable to one sustaining personal injury therefrom.74 This statement is usually based upon the assumption that the presence of ice is caused by natural causes, such as drippings from an adjacent building or by the operation of the laws of gravitation and temperature.75 76 The municipality may become liable, however, when the accumulation of ice on a street is because of some neglect of duty on its part, which is the cause thereof, such as neglect to construct and maintain suitable drains or gutters to carry surface water away.' And is there a liability on the part of the city where ice or snow is suffered to remain upon a sidewalk in such an uneven and rounded form that a person cannot walk over it, using due care?" The person complaining must be free from fault; if he knows of the dangerous condition it is imprudence on his part to venture on it.78 73 See c. 41. 74 Cook v. Milwaukee, 24 Wis. 270, 1 Am. Rep. 183; other cases cited throughout this section. 75 Hausmann v. Madison, 85 Wis. 187, 39 Am. St. Rep. 834, 55 N. W. 167; Taylor v. Yonkers, 105 N. Y. 202, 59 Am. Rep. 492; Stanton v. Springfield, 12 Allen, 566; Chase v. Cleveland, 44 Ohio St. 504, 58 Am. Rep. 843; Mauchchunk v. Kline, 100 Pa. St. 119, 45 Am. Rep. 364. 76 Decker v. Scranton City, 151 Pa. St. 241, 31 Am. St. Rep. 757, 25 Atl. 36; Cook v. Milwaukee, 24 Wis. 270, 1 Am. Rep. 183. 77 Luther v. Worcester, 97 Mass. 268; Providence v. Clapp, 17 How. 164; Broburg v. Des Moines, 63 Iowa, 523, 50 Am. Rep. 756, 19 N. W. 340; Keane v. Waterford, 130 N. Y. 188, 29 N. E. 130; Cloughessey v. Waterbury, 51 Conn. 405, 50 Am. Rep. 38. 78 Schaefler v. Sandusky, 33 Ohio St. 246, 31 Am. Rep. 533; Hausmann v. Madison, 85 Wis. 187, 39 Am. St. Rep. 834, 55 N. W. 167. CHAPTER XXIII. INJURY TO PERSON BY UNSAFE CONDITION OF LAND AND STRUCTURES AND MACHINERY. DANGEROUS § 314. Dangerous premises, and dangerous things erected or existing thereon-Classes of liability. § 315. § 316. § 317. § 318. Nature of wrong and injury considered in this chapter. § 319. Same continued-Duty to guest. § 320. By invitation-Adjudged cases. § 321. Duty to licensee. § 322. Licensees-Adjudged cases. § 323. Trespassers-Duty to. § 324. Dangerous premises, machinery, etc., attractive to childrenThe rule of law. § 325. Same continued-The age of the children-Contributory negli gence. § 326. Dangerous premises, machinery, and other things attractive to children-Continued-The rule applied to what things. § 327. Same continued-Other dangerous things and places. § 328. Other cases of nonliability. § 329. § 330. Ordinance requiring excavations to be filled or fenced- Injury from falling walls. § 331. Liability of city for injury to children. § 332. Dangerous machinery operated in the usual course of busi ness. § 314. Dangerous Premises and Dangerous Things Erected or Existing Thereon Classes of Liability.There are three classes of liability to be considered in connection with the duty of an owner or occupant of premises in respect to dangerous places, or dan gerous things or machinery existing thereon, viz., those who come there by invitation of the owner, express or implied, those who come there by virtue of a license express or implied, and those who come there as mere trespassers, and lastly children of tender or immature age who may be attracted or allured by reason of their childish instincts to go in and about premises where there may be things of dangerous character. The owner owes a duty to each one of this class of persons which will appear in the remainder of this chapter. § 315. Nature of Wrong and Injury Considered in This Chapter. In this chapter is considered the right of an owner or occupant of land to its use in so far as it may affect third persons. This involves the condition in which the land may be placed by the acts of the owner or occupant in its use and enjoyment, what he may place or construct upon it. While an owner is entitled to the uninterrupted use and enjoyment of his land, and may put it to such use as he may desire, still he must act in obedience to the ancient maxim, "Sic utere ut tuo non laedas." The only limitations upon his right to use it as he pleases are by reason of certain relations into which he is brought in respect to its use. To those persons with whom he is thus brought in contact he owes certain duties regarding the condition in which his premises shall be kept, a violation of which, leading to injury, gives rise to a right of action. The wrong or tort involved may be either negligence, and when it is continuous neglect, or the premises are put in a dangerous condition, it will constitute nuisance. The cases have not been particular in pointing out the nature of the wrong, whether of negligence or nuisance, and this we must do for ourselves. The only injury caused by these wrongs treated in this chapter are those affecting the person, not property, though the substantive principle of liability is the same in each case. § 316. General Duty of Owner of Premises as to Their Safety. Here will be stated the measure of care required of owners and occupants of land and structures to those whom the duty is owing. First, it will be necessary to have in mind the persons to whom the duty of keeping the premises in safe condition is due, which is only to those who come thereon by invitation, express or implied, on any business to be transacted or permitted by the owner. And to trespassers and licensees he owes the duty not to intentionally or willfully and wantonly injure them. The measure and extent of the duty of an owner of premises to one injured thereon depends altogether upon the relation which the parties sustain to each other at the time. The owner or occupant of premises, as to those persons whom he owes a duty in respect to their condition and safety, is not to be considered in any sense an insurer against accidents from their condition, but is bound only to the observance of such ordinary care as will enable him to keep it in such condition that it will not, by any insecurity or insufficiency for any purposes to which it may be put, injure any person rightfully in, around or passing the premises. The degree of care required to keep the premises reasonably safe is ordinary care and diligence.1 1 Atlanta Cotton-Seed Oil Mills v. Coffey, 80 Ga. 145, 12 Am. St. Rep. 244, 4 S. E. 759; Ryder v. Kinsey, 62 Minn. 85, 54 Am. St. Rep. 623, 64 N. W. 94; Nash v. Minn. Mill. Co., 24 Minn. 501, 31 Am. Rep. 349; Steppe v. Alter, 48 La. Ann. 363, 55 Am. St. Rep. 281, 19 South. 147; Baddeley v. Shea, 114 Cal. 1, 55 Am. St. Rep. 56, 45 Pac. 990 (ordinary care, such as good housekeepers ordinarily There are certain conditions in which premises are placed by its owner, and dangers thereon, which the owner may have the right to create and do not in and of themselves violate any right of another, but the law imposes upon such owner certain duties in respect to guarding those lawfully coming upon the lands from injury, and if he does not observe these duties, he becomes liable. If the premises are in an unsafe condition, which is known or ought to be known by the owner, or which he has negligently suffered to exist, and he does not give notice to or warn those rightfully on his premises, he violates his duty and renders himself liable for resulting injury. This wrong or tort is a nuisance, consisting in the mere existence of a condition, accompanied also with some negligence in failing to adopt certain precautionary measures. As for example where there is an open hatchway near where persons using the premises have occasion to go, which is not protected or guarded by a covering, or the danger is not indicated by light at night, the wrong is nuisance, the violation of duty consisting in the fact of the existence of the danger without protection and warning. In such cases the measure of care is said to be ordinary, and that the owner is not an insurer of their safety.2 3 Again, it is said that an owner is bound to keep his premises in a reasonably safe condition for the use of persons who enter upon his invitation. But there is no duty incumbent upon the owner to guard against latent defects, those which are either concealed in defective workmanship, or which are inexercise to avoid danger of personal injury in their own private dwelling-houses). 2 Lowe v. Salt Lake City, 13 Utah, 91, 57 Am. St. Rep. 708, 44 Pac. 1050. 3 Beehler v. Daniels, 18 R. I. 563, 49 Am. St. Rep. 790, 29 Atl. 6. |