the giver is not responsible for damage resulting from the insecurity of the thing unless he knew its evil character at the time, and omitted to caution the donee. There must be something like fraud on the part of the giver before he can be made answerable. It is quite consistent with the declaration in this case that their land (and bridge) was in the same state at the time of the accident as it was in at the time the permission to use it was originally given." There is thus no general duty to keep in repair as against bare licensees. Such duty as there is may be inferred from the following sentence: "Every man is bound not wilfully to No duty to deceive others, or to do any act which may place them in danger" (Willes, J.). licensees except not to injure them wilfully, a but must a caution them against known dangers. It would seem, however, that if leave is given to use certain place in which the licensor knows that there is hidden danger, trap, or latent defect, there is a duty cast on him to caution the licensee. But this must be limited to the terms of the license. In Ivay v. Hedges the plaintiff, a tenant 9Q. B. D. 80. of apartments, had a license from his landlord to use when he liked a certain leaden roof to dry his clothes on. There was a defect in a rail which was situate upon this roof, which defect was known to the landlord. The plaintiff went up on the roof for the purpose of removing some linen which was there, when his foot slipped, and the rail being out of repair, he fell through to the courtyard below and was injured. It was held that inasmuch as the plaintiff had a mere license to use the roof if he wished, there was no duty upon the defendant to fence or keep the fence in repair. In Batchelor v. Fortescue the deceased was employed by a builder to watch some unfinished buildings. Some men were at work excavating the adjoining land by means of a winch crane and bucket: while the deceased was watching the work the bucket fell and killed him. It was held that at the most he was a licensee, and that even then the master was under no duty with regard to him to provide a perfectly strong chain. 11 Q. B. D. 474. Duty towards person invited to use reason able care to prevent damage. (iii.) Invitation. The third class of cases are those in which there is an invitation, express or implied, to enter a person's property, excluding the case of servants and others employed on premises. "The common case is that of a customer in a shop: but it is obvious that this is only one of a class; for whether the customer is actually chaffering at the time, or actually buys or not, he is, according to an undoubted course of authority and practice, entitled to the exercise of reasonable care by the occupier to prevent damage from unusual danger, of which the occupier knows, or ought to know, such as a trap-door left L. R. I C. P. open, unfenced and unlighted" (Willes, J., Indermaur v. 318. Dames). "The distinction is between the case of a visitor who must take care of himself, and a customer, who as one of the public, is invited for the purposes of business carried on E. B. & E. 168. by the defendant" (Erle, J., Chapman v. Rothwell). 274; 2 C. P. Persons who are included in this class. Willes, J., pointed out that the protection would extend to the customer quite apart from the fact whether he was buying at the time, and also to the customer's servant if he were afterwards sent into the shop: "The class to which the customer belongs includes persons who go not as mere volunteers, or licensees, or guests, or servants, or persons whose employment is such that danger may be considered as bargained for, but who go upon business which concerns the occupier, and upon his invitation express or implied." Such a visitor is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger of which he knows or ought to know. The facts in Indermaur v. Dames were these: A journeyman gasfitter in the service of a patentee went on to a sugar refiner's premises to inspect some fittings, in accordance with a contract between the patentee and the refiner. A shoot on a level with the floor, used in connection with the business, was open, and without any fault on his part the fitter fell down it. On the principles above laid down it was held that the shoot, although it was necessary to the business to leave it open at certain times, was from its nature unreasonably dangerous to persons not usually employed upon the premises, but having notwithstanding a right to go there, and that consequently the plaintiff was entitled to recover. 437. John v. Bacon was decided on similar principles. A. L. R. 5 C. P. agreed to carry B. from M. to L. The mode of transit provided was that B. should come on to a hulk lying in M. harbour, and wait for the steamer to L. On the hulk, close to a ladder down which B. had to pass to reach the steamer, was a large hatchway, which was left unguarded and unlighted, and B. fell through it and was injured. The hulk belonged to a third party, and A. had only acquired a right to use it for the purpose of embarking passengers on his steamer. It was held that although the hulk did not belong to him, yet he was responsible for hidden dangers, by reason of the invitation held out by him. 315. On similar grounds the defendant was held liable in Elliott 15 Q. B. D. v. Hall. He had consigned coals in a waggon which he had hired from the Midland Waggon Company. The company kept their trucks in repair. The consignee's servant during the unloading was injured in consequence of the insecure state of the waggon. The Divisional Court held that there was a duty laid on the consignor towards those persons who necessarily would have to unload or otherwise deal with the goods, to see that the truck or other conveyance is in good condition and repair so as not to be dangerous to such persons. Many of the railway cases already noticed fall within this class. It is important to notice the distinction between a man going into a shop purely on his own business, for example, to beg for a charity; and one who goes in on business. business in which the shopkeeper has any interest. And to entitle him to recover it is incumbent on the plaintiff to shew clearly that he was on the premises on the defendant's An invitation is implied when a person enters on owner's business. In Southcote v. Stanley the declaration alleged that I H. & N. 247. L. R. 6 Ex: 123. 240 MENS REA. Chap. VII. § 3 the defendant, the proprietor of an hotel, "invited the plaintiff It will thus be seen that in the case of people invited the In Holmes v. North Eastern Ry. Co. the consignee of some coals, with the permission of the station-master, assisted the railway servants in the delivery of his coals which had to be effected in an unusual way. While doing so he stepped on a flagstone which was in an insecure condition, and was injured. It was held that he was not a bare licensee, but was engaged with the defendant's sanction in business of common interest to both parties. There was therefore a duty cast on the defendants that their premises should be in a reasonably secured condition. Leaving gates open at a level crossing of a railway was held L. R. 7 H. L. by the House of Lords to be a tacit invitation to the public 12. Railway cases: trains not stopping at platforms. to cross in safety: North Eastern Ry. Co. v. Wanless. There are a series of railway cases which fall under this head. Their main features are as follows: The train has stopped at a station : but from some cause or other, generally the unusual length of the train, some of the carriages have 1 overlapped the platform; in descending from a carriage the plaintiff has either missed his foothold and been injured, or from insufficient light has jumped on to a heap of rubbish which has caused him some damage. It is not necessary to dwell on the arguments for and against holding the company liable, they will occur to the mind of every student. The only question for the Court in every case has been, Was there an implied invitation to alight? If there was, then the company is liable; if there was not, then there is no liability. The rule would seem to be this: Bringing the carriage to a standstill at a place at which it is unsafe for a passenger to alight, under circumstances which warrant the passenger in believing that it is intended that he shall get out (but not that he will be carried beyond his destination if he does not), and that he may do so with safety, without any warning of his danger (such as "keep your seats"), amounts to negligence on the part of the company for which an action may be maintained. See Bridges v. North London Ry. Co.; Cockle v. South Eastern Ry. Co., Lewis v. Chatham and Dover Ry. Co., Weller v. London and Brighton Ry. Co. 503. Case of goods supplied to be used on supplier's We now come to the important case of Heaven v. Pender, 11 Q. B. D. to which we have already referred. The facts were as follow: The defendant was owner of a dry dock used for painting and repairing vessels. A ship was docked, the contract between the defendant and the owner including the supply of premises. the necessary staging and appliances for painting the hull, which were then handed over to the shipowner, and were out of the dockowner's control. The plaintiff was a workman employed by the painter who had contracted for the work: he was at work on the staging, when one of the ropes gave way, and he fell into the dock and was injured. With one slight variation, namely, that the property in the staging did not pass to the shipowner, the case to all appearance is on all fours with Winterbottom v. Wright, and so the Divisional [ante, p. 232.] Court considered it. There was a contract to supply an R |
