Lordship also referred to Coe v. Platt (a), and Clarke, Huddleston and J. O. Griffits in support of the rule. — The question is whether there was any duty or contract on the part of the Defendant in respect of the precautions which he was bound to take to prevent injury to the Plaintiff whilst on his premises, for a breach of which he is liable. The case cannot be put higher for the Plaintiff than that he was licensed by the Defendant to go on the premises. He was not invited there, and was not employed by the Defendant to do work there, but was merely servant to the patentee, who had completed his work on the previous Saturday, and wished to have it examined. [Erle, C. J. The Defendant had employed a person to attach to the meter his patent gas regulators, and by his contract promised to pay for them if after test they effected a certain saving] The permission to examine the burners was given to Hargreaves and not to the Plaintiff, and Wood in his evidence states that if he had known that the Plaintiff was coming on the Tuesday, he should have objected. [Willes, J. The contractor might either himself go and make the examination or send his workman.] The evidence shows that this was an ordinary sugar refinery, and any one with any knowledge of such a refinery would know that it must contain such a lift as that here, and the only duty cast upon the Defendant was to see that his premises were not otherwise than in their ordinary condition. It is not usual in a sugar refinery to fence a shaft used as this was; and Erle, C. J., in summing up told the jury that it must have been as well known to persons employed on the premises as the top of a man's own staircase. The accident was caused by the negligence of the Plaintiff in not following the guide appointed to accompany him. In Southcote v. Stanley (c), the decla(a) 6 Er. 752; affirmed in Error, 7 Er. 460. (6) 7 H. & N. 937. (c) 1 H. & N. 247, 250. 1866. INDERMAUR ย. DAMES. v. DAMES. 1866. ration was held to disclose no cause of action. It alleged INDERMAUR that the Defendant was possessed of an hotel, into which he had invited the Plaintiff to come as a visitor, and in which there was a glass-door, which it was necessary for the Plaintiff to open for the purpose of leaving the hotel, and that by the carelessness of the Defendant the door was in a dangerous condition and unfit to be opened, and that the Plaintiff was wounded by a piece of glass which fell from it as he was opening the door for the purpose of leaving. The judgment in that case establishes that the same principle which applies to the liability of a master to his servant for injury resulting from the negligence of a fellow servant, applies to the case of a visitor at a house.. [Erle, C. J. A guest becomes part of the host's family. Smith, J. The Plaintiff in Hounsell v. Smyth (a) was neither employed upon the premises of the Defendant nor invited there.] In Sullivan v. Waters (h), the decisions are collected and reviewed, and the case is a strong authority in favour of the Defendant here. The action there was brought by an administratrix under Lord Campbell's Act; and it appears from the facts alleged in the summons and plaint, that the deceased was employed by the Defendants in their distillery, and by their licence slept in a loft connected with it; and that his death was caused by falling through an aperture in the floor of the loft whilst passing along it in pursuance of the licence. It was there held, on demurrer, that the summons and plaint disclosed neither a contract nor a duty binding on the Defendants to guard or light the aperture; and that the mere licence, given by the owner in that case, to enter and use premises, threw no obligation upon him to guard the licensee against danger. Pigot, C. B., in delivering the judgment of the Court, there says, at p. 466, "How far the owner of premises, who gives to another person licence to enter and use them, is answerable (a) 7 C. B., N. S. 731. (b) 14 Ir. C. L. R. 460. for negligence in not guarding from danger existing on the the premises, the person to whom he gives such licence, is not very clearly defined by the decisions which have been made on questions of this nature. A distinction seems however to have been taken between the case of a person who enters and uses the owner's premises by the owner's express invitation, or as a customer who, as one of the public, is induced by the owner to come to his premises for the purposes of business carried on by the owner there, on the one side; and, on the other, the case of a mere visitor or guest, invited or uninvited, or of a person who has a mere licence to go upon the premises of the owner. The first class of cases comprises those of Corby v. Hill (a) and Chapman v. Rothwell (b); to which may be added, Gallagher v. Humphrey (c). In the second we find Southcote v. Stanley (d), Hounsell v. Smyth (e), Bolch v. Smith (f) and Wilkinson v. Fairrie" (g); and at p. 475, the Chief Baron, having reviewed a multitude of cases, says, “From the authorities, in their present state, I am unable to extract such general test or rule" (i. e. a test distinguishing where the owner of premises, which he licenses another to use, shall, and where he shall not, incur the obligation to guard the licensee against danger). "That the owner may incur such obligation is shown by some of the decisions; that in many cases he will not is shown by others. This however may, I think, be safely laid down as established by the second class of decisions to which I have referred, that a mere license, given by the owner, to enter and use premises which the licensee has full opportunity of inspecting, which contain no concealed cause of mischief, and in which any existing cause of mischief is apparent, creates no such obligation in the owner. Such is the case presented by this summons and plaint.” (a) 4 C. B., N. S. 556. Neither a contract (b) E. B. & E. 168. (c) 10 W. R. 664; S. C., 6 L. T. 684, N. S. (d) 1 H. & N. 247. (e) 7 C. B., N. S. 731. (f) 7 H. & N. 736. (g) 1 H. & C. 633. 1866. INDERMAUR v DAMES. 1866. INDERMAUR v. DAMES. nor a duty is alleged in the declaration here. [Smith, J. The duty is to be implied from the facts stated.] In Wilkinson v. Fairrie (a), the facts relied upon for the Plaintiff as raising a duty were as strong as here. In Bolch v. Smith(b) it was held that a government contractor, who had been permitted to erect a revolving shaft in a dockyard and erected it across a path which the workmen were allowed to use, was not liable for injury to a workman who stumbled over it, since the contractor was under no obligation to fence the shaft, and, having fenced it, the defect in the fencing was apparent. [Willes, J., referred to Toomey v. The London, Brighton and South Coast Railway Company (c).] Supposing the Plaintiff not to have been a mere licensee, but to have been upon the premises as the servant of Duckham, still as he was employed by the Defendant, the position of the Plaintiff here was analogous to that of the Plaintiff in Seymour v. Maddox (d). There in an action against the owner of a theatre by a chorus singer, who fell through a hole in the floor under the stage, the declaration was held bad in arrest of judgment. At p. 332, Erle, J., says, "The allegation of duty is an allegation of mere matter of law; and it is necessary to state facts from which the duty which is charged to be broken arises. If the facts are insufficient for this purpose, the allegation of duty will not help. Here it is stated that the Defendant held a theatre &c. * * and that it was the duty of the Defendant to light the floor sufficiently, so as to prevent accidents to those who had to pass along it. Was any such duty cast upon the Defendant? I think not. A person must make his own choice whether he will accept employment on premises in this condition; and, if he do accept such employment, he must also make his own choice whether he will pass along the floor in the dark or carry a light. If he sustain injury in consequence of the premises not being lighted, he has no right of action against the master who has not contracted that the floor shall be (a) 1 H. & C. 633. (c) 3 C. B., N. S. 146. lighted." As between a seaman and the shipowner, there is no warranty that the ship is seaworthy: Couch v. Steel (a). Neither is the owner of a carriage responsible to his servant for injury arising from imperfection in the carriage unknown to the master, or in the mode of loading or conducting it: Priestley v. Fowler (b). Farrant v. Barnes (c) was decided upon the ground stated in the judgment of Willes, J., p. 563, that as matter of legal duty, a person who gives another dangerous goods to carry, which are likely in the absence of more than ordinary caution to injure persons handling them, is bound to give notice of their dangerous character to the carrier. The illustration there given is the instance of a merchant putting on board a ship goods liable to spontaneous combustion; and Brass v. Maitland (d) and Williams v. The East India Company (e) are cited. But in those cases the duty cast upon the shipper is ex contractu. In Clarke, App. v. Holmes, Resp. (f), the Plaintiff was injured in consequence of machinery which he was employed to oil, and which was fenced when he entered the service of the Defendant, being allowed to remain unfenced after the fencing had become broken, and the Plaintiff had complained of its dangerous condition to the Defendant, and he had promised to have the fencing restored; and the Exchequer Chamber held, affirming the judgment below, that the Defendant was liable. But there the declaration was originally founded upon the duty of the Defendant to fence the machinery under the statutes 7 & 8 Vict. c. 15, and 19 & 20 Vict. c. 38; and, though all the Judges concur in the judgment for the Plaintiff, they do not concur in the reasons on which it is founded. Cur. adv. vult. The judgment of the Court was now delivered by WILLES, J. This was an action to recover damages for injuries sustained by the Plaintiff falling down a shaft at the (a) 3 E. & B. 402. (b) 3 M. & W. 1. (c) 11 C. B., N. S. 553. (d) 6 E. & B. 470. 1866. INDER MAUR ບ. DAMES. |