Hobbs v. Company , 74 N.H. 116 ( 1906 )

The deceased was not, in a legal sense, the guest of the defendant. He was not present in Camp No. 38 upon the defendant's invitation, either express or implied. The fact that it may be chargeable with knowledge that strangers frequently came upon the premises, and were suffered to remain there without actual objection, is not sufficient evidence that the camp boss was authorized by the defendant to charge it with the legal responsibility of a landowner to his guest, by inviting his friends to come to the camp, not for any benefit or advantage to the defendant in its business, but simply for their enjoyment or pleasure. The boy was evidently there to gratify his curiosity and to have "a good time," and not, in the slightest degree, to promote the interests of the defendant. There is, therefore, no reason upon which to base the inference that the camp boss represented the company, or could legally assume that authority, when he invited the boy to visit the camp. The deceased was not the defendant's invitee.

Whether the deceased was technically a trespasser or a bare licensee, it was competent for the jury to find upon the facts disclosed that the defendant knew of his presence in the vicinity of the camp at the time of the accident. Knowing that he was there, as well as that strangers were frequently upon the premises with the passive acquiescence of the defendant, it was bound not to actively render his situation unreasonably dangerous. It owed him some duty with reference to his personal safety. "Reasonable men might . . . find that, having reason to anticipate a human being might be in a position to be seriously injured by the action contemplated, men of ordinary prudence, having regard to their general obligation to so conduct their lawful business as not to injure others, would not set in motion forces which might have that result, without taking some precautions to prevent it. This would be true, whether the persons who might be injured were in legal definition trespassers, licensees, or invitees." Minot v. Railroad, 73 N.H. 317, 321. Other cases decided upon that general principle are Mitchell v. Railroad, 68 N.H. 96; Hughes v. Railroad, 71 N.H. 279; Myers v. Railroad, 72 N.H. 175; and Brown v. Railroad, 73 N.H. 568. In the last case it is said (p. 573) that "the defendants would be responsible for negligently injuring the deceased through their active intervention, even if she were a trespasser, provided at the time of the accident she was in the exercise of ordinary care, and they knew of her presence in a dangerous situation, or failed to exercise due care to discover her presence in such a situation when circumstances existed which would put a person of average prudence upon inquiry. Her presence upon their premises would then be a mere condition and not a contributing cause."

Whether Lacombe's act of putting the sticks of dynamite on the ground at the foot of the tree was negligence, due to the defendant's "active intervention," is principally a question of fact. Lacombe while in the performance of his work as the custodian of the dynamite represented the defendant, — he was in law the defendant for that purpose with reference to third parties, — and the defendant is bound by the legal consequences of his act in that respect. As tending to prove that there was active intervention by the defendant which resulted in the boy's death, it is inferable from the case that leaving dynamite upon the ground in a logging camp, where strangers are liable to be, who are unacquainted with its use or its explosive properties and who are not notified of its presence where they are liable to walk, is not only a careless act, indicating a disregard of human life, but an unnecessary and unusual act in the reasonable prosecution of lumbering operations. A finding that the defendant was not carrying on its business "in the usual and ordinary manner" (Buch v. Company, 69 N.H. 257, 259; Hughes v. Railroad, supra, 285), but in an unnecessarily dangerous and extraordinary manner, would seem to be supported by the reported facts, and to authorize the conclusion that the ordinarily prudent man, having regard for the safety of others, though trespassers upon his land, would not expose them to such exceptional dangers, created at the time and for no reasonably necessary purpose. A man's dominion over his land is not absolute, but is qualified by the principle of reasonably necessary user (Horan v. Byrnes,72 N.H. 93); and while he is not answerable to others for damages caused by using his land in such a way as is reasonable and necessary for the proper prosecution of his legitimate business, no reason is apparent why he should escape liability, when the injury results from his doing upon his land unusual and dangerous acts, which the ordinarily prudent man would not do in the proper prosecution of the same business under the circumstances. This principle is doubtless otherwise expressed when it is said that the landowner is not liable to a trespasser or bare licensee for the careless use of his land, in the absence of his active intervention. See 11 Harv. Law. Rev. 349, 360-366. In this case the defendant's negligence or breach of duty to the deceased consisted in creating upon the land a concealed danger, not justified or required by the business it was ostensibly carrying on, when it knew of the boy's presence and of his probable ignorance that the danger existed. It performed at the time an unnecessary affirmative act which it knew was likely to result in serious harm to the deceased and to others similarly situated. The exigencies of its business do not appear to justify such a dangerous mode of procedure, even as against a trespasser or bare licensee.

The fact that "so far as known the Corbin boy had never seen dynamite" is assumed to mean, that he did not know what it was when he saw it, and, of course, that he would not appreciate its explosive character. There is nothing in the case indicating that the defendant had reason to suppose he was acquainted with dynamite, or that he knew that any of it was on the ground at the foot of the tree. It is not improbable that it was partially concealed in the snow and would not attract the attention of one who was not looking for it. Under such circumstances, no duty rested on the boy with reference to the dynamite. If he did not know of its presence and was in no fault for not knowing it was there, it was not incumbent on him to conduct himself as though he was informed of the danger. His ignorance of the danger and the explosion may show that he was not guilty of contributory negligence. If, however, he understood the danger of his position and that a slight jar might produce an explosion, it would be necessary for the plaintiff to produce further evidence that he was exercising due care. The duty of care involves some conception of the danger likely to result from its non-observance. The circumstances attending the catastrophe, as related in the plaintiff's opening statement, warrant the inference that the boy was guilty of no negligence contributing to his death, and that the sole cause thereof was due to actionable negligence of the defendant.

Exception sustained.

PARSON, C. J., and CHASE and BINGHAM, JJ., concurred: YOUNG, J., concurred in the result.