as an invitee or business visitor, and the land occupier owes him the additional duty of using due care to inspect and keep his premises in a safe condition.37

47. Duty to invitees.-In case the land occupier has not merely given one a permission to enter upon his land, but has extended him an invitation to enter, he owes him, in addition to the duties owed to a bare licensee, also a duty to use reasonable care to maintain his premises in safe condition.38 One who comes upon another's premises on business, in which the occupant has a pecuniary interest, comes within this rule. Thus, in Garfield & Proctor Coal Co. v. Rockland-Rockport Lime Co.,39 the defendant was the owner of a dock for the discharge of cargoes. There was a ledge of rock in the bottom of the dock of which the defendant could have known by the exercise of due care. The vessel of the plaintiff, carrying coal to the defendant, entered the dock, grounded and sustained injuries. The plaintiff was allowed to recover. In Ganley v. Hall," the plaintiff went on the premises of the defendant to borrow money from one who was not a money lender.

In Faris v. Hoberg," the plaintiff went on the defendant's premises looking for a drayman who had no connection with the defendant's affairs. As each went on his own affairs and not on the business of the defendant, he was regarded as no better

37 Francis v. Cockrell, L. R. 5 Q. B. 501 (Eng.); Schofield v. Wood, 170 Mass. 415, 49 N. E. 636.

38 Indermaur v. Dames, L. R. 1 C. P. 274 (Eng.); Chapman v. Rothwell, E. B. & E. 168 (Eng.).

39 184 Mass. 60, 67 N. E. 863.

40 168 Mass. 513, 47 N. E. 416.

41 134 Ind. 269, 33 N. E. 1028.

than a mere licensee and was held not entitled to recover for an injury due to the unsafe condition of the premises.

As to the status of the merely social visitor, the English and American courts show a difference of opinion. In England, he is classed as a bare licensee. In this country, the tendency is to apply to him the same rules as those applied to a business visitor, when he is present at the request, express or implied, of the occupant. Thus, in Davis v. Central Society," a churchgoer was allowed to recover for injuries sustained by reason of the unsafe condition of the church premises.

43

A hotel guest who pays his way, of course, comes under the rule of Francis v. Cockrell; that is, he is in the position of an invitee.

B. Breach of a Statutory Duty.

44

48. To whom duty is owed.—In instances where the common law has created no duty, the legislature may step in and create a duty, or it may extend a duty already existing to a still larger class than that to which it is already owed; or, again, that body may make more stringent an existing common law duty.

When the legislature designates who shall have a right of action under a statute, the meaning of the

42 129 Mass. 367. In Benson v. B. T. Co., 77 Md. 535, 26 Atl. 973, the members of a graduating class on a tour of inspection were deemed mere licensees. Firemen are deemed mere licensees. Gibson v. Leonard, 143 Ill. 182, 32 N. E. 182.

43 See note 37, page 41; also § 46.

44 Compare $ 35.

statute is evident. But where the legislature does not in terms give any individual a cause of action, it becomes a matter of construction to determine whether or not the legislature intended any individual to be able to sue for damages arising out of a breach of the statute, and, if so, who. If no penalty is prescribed, the natural inference is that, there being otherwise no way to compel a compliance with the statute, the persons who were intended to be protected by the statute have a cause of action, if they are harmed by its violation. If a penalty is prescribed for the benefit of the state, and some form of relief is also given to the individual harmed, the general presumption is that this relief was intended to mark his sole rights under the statute. Thus, in Grant v. Slater M. & P. Co.,45 the statute required the owner of buildings of a certain height to erect fire-escapes. The plaintiff was a tenant and thus obviously one for whose protection the statute was enacted. However, he was not allowed to recover, inasmuch as the same statute gave him a right to enjoin the owner from permitting the building to go unprotected by fire-escapes.

If a penalty is prescribed to go to the state, and no individual is mentioned, the question is a close one, and is purely one of legislative intent, as disclosed by the particular statute. In Willy v. Mulledy, a tenant in a tenement house was held entitled to recover from the owner under a fire-escape statute similar to the one above mentioned, but which pre

46

45 14 R. I. 380. 46 78 N. Y. 310.

scribed for its violation only a fine. In Atkinson v. Newcastle Waterworks," the statute required the water company, under a penalty of £10 for each violation, to maintain a certain fire pressure. The plaintiff, one whose house had been burned, was not allowed to recover, although the pressure had been deficient, as the legislature was not thought to have intended the creation of an individual duty to him. Of course, if the statute was not meant to protect the particular plaintiff who sues, he cannot recover, although the statute may have given a right to sue to some other individual. Thus, in Western Ry. v. Mutch,48 the defendant ran its trains through a town faster than the ordinances permitted. A small boy attempted to. jump on the train while it was in motion, but fell from it and was injured. It was held that the railroad violated no duty to one who attempted to jump on the train, although it did violate a duty to one who might be legitimately crossing its tracks.

The foregoing paragraphs refer to situations where one is attempting to recover under a statute. If the act of which he complains is also actionable by him at common law, independently of the statute, he can take his choice, disregard the statute and sue on the common law liability, unless the statute has by necessary implication taken away from him that right.

49. Nature of duty-Whether violation is negligence. It may, of course, have been the intention

47 2 Ex. Div. 441 (Eng.).

48 97 Ala. 194, 11 So. 894.

49 Clare v. N. Y. & N. E. R. R. Co., 172 Mass. 211, 51 N. E. 1083.

of the legislature only to require of the person on whom a duty has been enjoined to use reasonable care to comply with the statute. In this event, the inquiry becomes the same as in a negligence case, "Did the defendant act as a reasonably prudent man would have acted under the circumstances?" This is often construed to be the extent of the responsibility created when the duty has been imposed on public boards and the like. However, the legislative intent is usually much stronger. If it be, then it is quite immaterial whether or not the defendant has acted with due care or indeed has gone beyond this in his efforts. The question ceases to be one of negligence, but the person on whom the duty is enjoined acts at his peril of failure to discharge the duty.

Thus, in St. Louis, etc., R. R. v. Taylor,50 the federal statute had provided that "no cars shall be used in interstate traffic which do not comply with the standard" as to the height of the draw-bars. The railroad had originally provided standard height draw-bars, but these, it was shown, wore rapidly. The railroad had then provided trainmen with metal wedges, or "shims," to put under the worn bars to bring them up to proper height. It was held that this reasonable effort did not discharge the duty owed under the statute and that the railroad was liable for an injury caused by the lowered draw-bars. In such cases it is not profitable to inquire, "Did the defendant act as a reasonably prudent man?" The legislature has established a fixed standard for the conduct of the individual. His conduct in violating the statute is illegal 50 210 U. S. 281, 28 Sup. Ct. 616.