2. There is another principle of law applicable to this case, which is discussed in these cases cited, and also in others of our own Court, which is the right to defend one's property as well as his person against violence and felonies. Mr. Blackstone announced the rule, a long time ago, that where a crime, which is itself punished capitally, is attempted to be committed by force, it may be prevented by force, even to the taking of life. . . . This common-law doctrine is also quoted thus in Storey's Case, 71 Ala. 337:

"A man may repel by force in defence of his person, habitation, or property, against one who manifestly intends, or endeavors, by violence or surprise, to commit a known felony, such as murder, rape, robbery, arson, burglary and the like, upon either. In these cases he is not obliged to retreat, but may pursue his adversary until he has secured himself from all danger; and if he kill him, in so doing, it is called justifiable self-defence.”—1 East, P. C. 271...

Applying these principles of law, we hold that the owner of such a store is not liable in trespass to a would-be burglar thereof, who is shot by means of a spring gun by such owner placed in the store for the purpose of shooting persons who might attempt to burglarize it; the gun being discharged by the would-be burglar in attempting to enter.

DOWDELL, C. J., and SIMPSON and DENSON, JJ., concur.1

1 [PROBLEMS:

Affirmed.

The plaintiff was trespassing on the defendant's cart, in which was the defendant's savage dog. The dog bit him. May he recover? (1903, Peck v. Williams, 24 R. I. 583, 54 Atl. 381.)

The plaintiff peddler entered the defendant's house, peacefully, but without permission, and was bitten by the defendant's savage dog. Is the defendant liable? (1903, Carroll v. Marcoux, 98 Me. 259, 56 Atl. 348.)

The defendant, to prevent trespassing, fixed a barbed-wire fence on his premises from house to sidewalk boundary. The plaintiff in the dark strayed from the sidewalk on to the grass and was injured by the wire. Is the defendant liable? (1899, Dingley v. Clough, 173 Mass. 429, 53 N. E. 884.)

The plaintiff's horse, unlawfully at large on the defendant's railroad track, was killed by the train. The trial Court was asked to rule that the defendant's failure to keep a lookout was not a ground of liability, and that it would only be liable if, “after discovery of the horse's peril the defendant's servants failed to do something which they ought to have done to avoid striking it and which if done would have been effectual to prevent the collision." Was this correct? (1887, Palmer v. R. Co., 37 Minn. 223.)

The plaintiff's intestate was hunting in a meadow, where he was a trespasser. The defendant's electric railroad ran through the meadow, and the third rail was unprotected. The plaintiff's intestate stepped upon it and was killed. May the plaintiff recover for the death? (1909, Sutton v. West Jersey & S. R. Co., 78 N. J. L.—, 73 Atl. 256.)

The defendant's land had a quarry-hole. The plaintiff, who knew of this, put his horse to pasture in the adjoining field. A fence had separated the premises, and the defendant was bound by contract (made by the prior owners) to maintain it; but the fence was down and unrepaired. The horse strayed at night

into the quarry hole, and was killed. May the plaintiff recover? (1886, Krum v. Anthony, 115 Pa. 431.)

The defendant maintained a public park, in which it was forbidden to walk on the grass. The plaintiff, walking on the grass, fell into an unfenced trench. Is the defendant liable? (1898, Sheehan v. Boston, 171 Mass. 296, 50 N. E. 542.)

The plaintiff, a painter, while working on a house, tied a rope of his scaffold, without permission, to the chimney of the defendant's adjoining house. The defendant at night untied the rope. Next day the scaffold fell, and the plaintiff was injured. Is the defendant liable? (1869, Phillips v. Wilpers, 2 Lansing, 389.) The defendant strewed poison about his premises, to prevent depredations by dogs and other animals. The plaintiff's dog came upon the defendant's land, ate the poison, and died. Is the defendant liable? (1901, Cobb v. Cater, 59 S. C. 462, 38 S. E. 114.)

The plaintiff was poaching on the defendant's fishpond. The defendant's agent fired and shot the plaintiff. Is the defendant liable? (1906, Magar v. Hammond, 183 N. Y. 387, 76 N. E. 474.)

The plaintiff by fraudulent use of a pass was riding on the defendant's railroad car, and was injured by the defendant's fault. Is the defendant liable? (1877, Toledo, W. & W. R. Co. v. Beggs, 85 Ill. 84.)

The plaintiff boy was riding as a trespasser on the footboard of an enginecab. The engineer, to drive him off, threw hot water on him, and he fell off on the track and was injured. Is the defendant liable? (1898, Galveston H. & S. A. R. Co. v. Davis, 92 Tex. 372, 48 S. W. 563.)

The plaintiff boy went into the defendant's circus-tent at the invitation of the defendant's son, who had no authority. The clown, during the performance, so carelessly exploded a giant firecracker that the plaintiff's eye was put out by a fragment of it. May the plaintiff recover? (1899, Herrick v. Wixom, 121 Mich. 384, 80 N. W. 117.)

The plaintiff's intestate, in a thunderstorm took refuge under a third person's porch. The defendant's telephone wire was faultily strung near a metal roof, and a bolt of lightning was thereby so conducted as to kill the plaintiff's intestate. Is the defendant liable? (1903, Cumberland T. & T. Co. v. Martin, 116 Ky. 554, 76 S. W. 394.)

The plaintiff was unlawfully riding in the defendant's car. The defendant's conductor told him to get off. The plaintiff said, "D- you; you are bigger than I am; put me off." The conductor grasped the plaintiff's arm; then the plaintiff punched the conductor and started to get off. The conductor then kicked him as he went. Has the plaintiff an action for this kick? (1897, City Electric Co. v. Shropshire, 101 Ga. 33, 28 S. E. 508.)

NOTES:

"Duty to trespasser: Voluntary risk." (C. L. R., II, 563.)

"Negligence third person's liability to trespasser." (C. L. R., XI, 186.) "Poison set by land-owner as protection against trespass." (H. L. R., XV, 159.)

"Liability to trespassers: Liability of third person for condition of premises." (H. L. R., XVIII, 150.)

"Trespasser on train injured by collision." (H. L. R., XVIII, 397.)

"Use of spring guns." (M. L R., II, 326.)

"Injuries caused by electrified third rail." (Y. L. J., XX, 401.)]

Topic 2. Licensees

718. LOWERY v. WALKER

COURT OF APPEAL, KING'S BENCH DIVISION. 1910.

L. R. [1910] 1 K. B. 173

APPEAL from the judgment of a Divisional Court (DARLING, J. and PICKFORD, J.) upon an appeal from the Whitehaven County Court.

The action in the county court was for personal injuries occasioned to the plaintiff through being bitten, knocked down, and trampled upon by a horse which belonged to the defendant, under the following circumstances. The defendant, a farmer, had put the horse by which the plaintiff was injured into a field, of which he had been the occupier for fifteen years, adjoining a railway station. The field was divided from a footpath by a wire fence. It appeared from the evidence that the horse had been put there from time to time for at least three years before the plaintiff was injured as aforesaid. There was evidence to the effect that, for the purpose of making a short cut, members of the public had, for a period of between thirty and forty years previous to the action, habitually crossed this field from a point on the footpath, where they got over the fence, to a gate near the station, and that there was a trodden track from that point to the gate, which was usually unlocked, but was occasionally kept locked. The plaintiff was crossing the field by this track, when he was injured by the horse as above mentioned. He had no leave to cross the field from the defendant. The horse had previously bitten or attacked other persons, and the county court judge found that the defendant knew that this was the case and that the horse was dangerous. The defendant and his son stated in evidence that they had frequently shouted at persons crossing the field as aforesaid, and sometimes turned them back; and that they had complained to the police of persons so crossing, as trespassers, and the defendant had been advised by the police to prosecute persons who had done so, but had declined to take proceedings against them on the ground that they were customers of his for milk. . . .

Holman Gregory, for the plaintiff. . . . There is no difference in principle between the case of a person who lays a spring gun, by which he intends that trespassers shall be injured, and the case of a dangerous horse which the owner knows will bite persons who trespass in the field where the horse is kept. In the case of a spring gun the owner of it is liable if a trespasser is injured: Bird v. Holbrook, [ante, No. 713.] . . . The principle to be deduced from the authorities is that, when a landowner knows that persons are in the habit of trespassing on his land, he must not do anything which will expose them to something which is not one of the ordinary risks incident to the user of the property.

Leslie Scott, K. C., and H. L. Beazley, for the defendant. . . In

determining cases of this class, the only criterion known to the law is that stated by Gibbs, C. J., in Deane v. Clayton [ante, No. 711], namely, had the plaintiff any right to be at the place where he was injured? Putting aside cases of intentional injury, like those in which spring guns were used, cases of nuisances adjoining a highway, of which Barnes v. Ward [ante, No. 714] is an example, and cases of children, a trespasser who sustains injuries while trespassing has no right of action. . Mere acquiescence by a landowner in trespassing does not impose on him any special duty toward the trespassers. .

VAUGHAN WILLIAMS, L. J. I think that in this case, upon the facts as found by the county court judge, and as appearing from the evidence given at the trial, there was not shewn any such duty on the part of the defendant towards the plaintiff as would support the action brought by the plaintiff. We have had cited to us a number of cases. I do not say that all those cases are precisely in accord with one another, but I think that the majority of them support the view which I am now expressing. According to my view of the matter it is impossible in such cases to lay down any hard and fast rule. . . .

...

I do not think that anything would be gained by my going through all the cases which have been cited to us. I propose to state the principles which I conceive to be applicable to the present case.

We have to consider whether any, and, if so, what, duty arose on the part of the defendant towards the plaintiff, notwithstanding the fact that he was a trespasser, and was in the defendant's field without leave or license and without any invitation. . . . I do not think that, upon the facts and findings in this case it can fairly be said that those persons who used this field as a short cut were encouraged to do so by the defendant. . . . In my opinion these people, generally speaking, take upon themselves the risk of what they may find on the land which they know themselves to be wrongfully crossing. I do not say that they take upon themselves the risk of finding a tiger in the field; but they take upon themselves, in my opinion, the risk of any danger there may be in the field, if used in the way in which such a field is ordinarily used. This was a pasture field. In such a field one would reasonably expect to find horses and cows, and maybe bulls. It is common knowledge that such animals vary very much in temper, some being of a fiercer temper than others; and it is only reasonable to expect that there may be in such a field a bad-tempered horse or bull. . . . I think the headnote should run thus: "The fact of the defendant's knowledge that the public habitually trespassed there under the circumstances imposed no duty upon him to take care for their protection." For the reason which I have given I think that this appeal should be dismissed. BUCKLEY, L. J. It is not without grave distrust of my own judgment that I venture, on a point of this kind, to differ from my learned colleagues. I am, however, of opinion that this appeal ought to succeed. . . . I may exclude from consideration cases in which there was an inten

tion to injure, such as Bird v. Holbrook, [ante, No. 713;] it is not suggested that in this case there was any intention to injure. The class of case with which I have to deal is that in which persons, to the knowledge of the owner, have habitually crossed a field without leave of and then, I myself add, as my conclusion from the evidencebut, substantially, without any objection by, the owner. . . . While such a person might in a sense be said to be a trespasser, so far as any right is concerned, inasmuch as he has no right, yet, if he is there by excuse or license, he cannot be treated as a trespasser. The owner of the land has, by his acquiescence, abrogated his right to say to such a person that he has no business there, that he is a trespasser. . . . The proposition of law, as I understand it, is that the donee must not look a gift horse in the mouth; if something is given, it must be enjoyed as it is given, and taken with its risks; but subject to this, that, if the giver knows of some evil character in it at the time, and does not warn the donee, he is responsible, although it was a gift. . . . I think that the owner of a field which to the owner's knowledge has been habitually used by the public as a short cut, whether they come there by express leave or not, owes them a duty not to expose them to danger by putting into the field an animal which he knows to be dangerous.

On these grounds I think that the defendant is liable, and the appeal ought to succeed.

KENNEDY, L. J. .

It seems to me that the plaintiff, in order to succeed, was bound to shew that he had something in the nature of permission, at any rate by implication, or a license, though it may be a revocable license, to go over the field; but in my opinion that was not so. The facts, as I have stated, fall far short of that. . . . In this case the facts do not appear to me to shew any encouragement, or inducement, or invitation by the defendant to the plaintiff to cross this field, and I think that the cases of this kind in which it has been held that there was a liability on the part of the defendant, when examined, really all shew that the basis of the liability was treated as being something in the nature of permission by the landowner which might be called an encouragement or invitation by him to the plaintiff to come on the land. I admit that the line in such cases is hard to draw, but on the whole I think that the plaintiff has failed to make out a case. Appeal dismissed.

719. CHENERY v. FITCHBURG RAILROAD COMPANY SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1893

160 Mass. 211, 35 N. E. 554

HOLMES, J. This is an action for running down the plaintiff at a point on the defendant's track where it is crossed by a private way,