hundred feet from this street across the quarry to Boylston Street. It was in dispute whether there was a path leading from the road, near the stone crusher, across the ledge to Boylston Street; but it appeared that workmen on the quarry and other persons sometimes worked there, and the plaintiff's intestate was walking in this course when the derrick fell upon him. There was evidence from different witnesses that there were signs put up on that part of the quarry, on which were the words, "No Trespassing." The most that could be contended in favor of the plaintiff, on the question whether this was a way for the use of the public, was that persons were permitted to go there as licensees. Moffatt v. Kenny, 174 Mass. 311; Bowler v. Pacific Mills, 200 Mass. 364. If the plaintiff was walking through the quarry merely as a licensee, the defendant owed him no duty to keep its derrick safe, so that he might not be injured by its fall from an accident. See cases cited. The plaintiff contends that his intestate was walking there by invitation, for the purpose of selling newspapers to the workmen on the quarry. Upon this branch of the case the evidence relied on by the plaintiff came almost entirely from witnesses who testified to the boy's previous declarations. There was testimony from his employer, a news agent, that the engineer who was employed at the engine house, which was just by the road to the stone crusher, about fifty feet from Paul Gore Street, was the only regular customer that he had on the ledge, that he had a book containing a list of the regular customers on the route, and that Ralph, the deceased, had a copy of it called the "route book," and that it was Ralph's custom to collect money weekly from the engineer. He also gave testimony tending to show that the deceased sometimes sold papers to other workmen in the quarry. He said that Ralph came to him one morning and said that he was going to sell papers in the quarry; that he said to Ralph, "They will not let you;" and Ralph said, "Well, the boss of the quarry has asked me to go and sell him papers and to sell papers in the quarry, as the workmen desire it;" that after that conversation Ralph went upon that route. The plaintiff testified that his son told him that he had two regular customers at the ledge, the engineer and the foreman; also that he sold papers to other men working on the ledge. The foreman's office was between the engine house at the driveway and Paul Gore Street. The foreman denied that he bought papers of the plaintiff's intestate, and said that he "told him to get away from there, that it was no place for him to be." If he went upon the ledge simply for the purpose of selling papers in his own interest and that of his employer, he would be only a licensee, who would take the risk of such dangers as existed there from the condition of the place and the methods of carrying on business, whether the business was conducted carefully or negligently.

The law as to persons entering upon land by invitation was much considered in Plummer v. Dill, 156 Mass. 426, and Hart v. Cole, 156 Mass. 475. In the former of these cases it is said that,

"To come under an implied invitation, as distinguished from a mere license, the visitor must come for a purpose connected with the business in which the occupant is engaged, or which he permits to be carried on there. There must at least be some mutuality of interest in the subject to which the visitor's business relates, although the particular thing which is the object of the visit may not be for the benefit of the occupant."

In order to constitute an implied invitation, within the meaning of the rule that imposes an obligation to have premises reasonably safe for an invited person, the purpose of such a person in going there must have a direct connection with the business actually or apparently carried on there. The business carried on at this place was quarrying stone. The sale of newspapers to workmen, even to an engineer or foreman, had no connection with the business. If it could be said that there was an invitation to come and sell a paper to the engineer or to the foreman, this involved going but a few steps along the driveway from the street, and it was not an invitation to pass over the ledge and along by the derrick. Apart from the single sentence quoted from the statement of what the boy once told his employer, there is not a word of testimony in the case tending to show that his selling of papers to workmen in the quarry, if he sold any, was by authority or permission of the foreman. If it was true that "the boss of the quarry" asked him "to go and sell him papers and to sell papers in the quarry," there was no evidence that this was anything more than a license to do that which had no relation to the business for which the place was being used. If the language can be treated as a request, or an express invitation, it was not an invitation in law, within the principles stated in Plummer v. Dill, ubi supra. There is no evidence that the foreman of the quarry had authority, as affecting in any way the defendant's business or the defendant's interests, to invite a newsboy to come into the quarry and go about among the workmen in working hours, selling papers. This could have no tendency to forward the business or promote the interests of the defendant. If the foreman did this, the only reasonable inference is that he did it merely as permission to the boy, to enable him to make a profit on the sales, and perhaps in part to indulge some workman in a personal wish which had no relation to the business carried on by the defendant.

We are of opinion that there was no evidence that the defendant owed the plaintiff's intestate any duty to have the ground or the derrick safe, so that he could pass through the quarry without risk of injury. Exceptions overruled.1

1 [PROBLEMS:

The plaintiff boy was taking his father's dinner to him on the defendant's premises. The father was employed by a contractor doing work for the defendant. While passing under a crane, the chain broke, by fault of the defendant's agents, and some barrels of sugar fell on the plaintiff. Is the defendant liable? (1862, Gallagher v. Humphrey, 6 Law T. R. Ñ. S. 684.)

The plaintiff attended a service in the defendant's church. The plaintiff be

Topic 4. Children

723. RYAN v. TOWAR

SUPREME COURT OF MICHIGAN. 1901

128 Mich. 463, 87 N. W. 645

ERROR to Marquette; STONE, J. Submitted April 3, 1901. Decided October 22, 1901. Case, by Mary Ryan, by next friend, against Edgar H. Tower, impleaded with the Brice Manufacturing Company and longed to another church, but the service was held at the invitation of a conference of churches of the same faith, and by permission of the defendant took place in the defendant's building. The plaintiff was injured by a defective passageway. Is the defendant liable? (1880, Davis v. Central Congregational Society, 129 Mass. 367.)

The plaintiff was a boarder in the house of a tenant of the defendant. By defects in the drainage construction, diphtheria seized the inmates. Is the defendant liable for the plaintiff's illness? (1895, Towne v. Thompson, 68 N. H. 317, 44 Atl. 492.)

The plaintiff while on the defendant's premises in search of employment by the defendant was injured in a defective elevator. Is the defendant liable? (1909, Steiskel v. Marshall Field & Co., 238 Ill. 92, 87 N. E. 117.)

The plaintiff, as a friend of a friend of the defendant's servant, was calling upon the servant, and was injured by a defect in the premises. Is the defendant liable? (1900, Riley v. Harris, 177 Mass. 163, 58 N. E. 584.)

The plaintiff entered the defendant's building to see whether a friend of the plaintiff's was one of the tenants. In fact, the friend did not live there. The plaintiff fell down a defective elevator-well. Is the defendant liable? (1899, McCarvel, v. Sawyer, 173 Mass. 540, 54 N. E. 259.)

The defendant maintained a water-tower, and the keeper lived in a house at the foot of it. By a defect, the tower burst, and the avalanche of water overwhelmed the inmates of the house, one of whom was the keeper's mother-in-law, then on a visit to the family. Is the defendant liable for the injury to her? (1896, Defiance Water Co. v. Olinger, 54 Oh. 532, 44 N. E. 238.)

The plaintiff's intestate was a fireman, and was standing on the roof of the defendant's building while engaged in putting out a fire in the adjacent building. By a defect, the roof collapsed, and he was killed. Is the defendant liable? (1893, Woodruff v. Bowen, 136 Ind. 431, 34 N. E. 1116.)

The plaintiff was a Federal revenue inspector on duty at a distillery owned by the defendant, and was injured on a defective stairway. Is the defendant liable? (1898, Anderson & N. D. Co. v. Hair, — Ky. —, 44 S. W. 658.)

The plaintiff was a constable who entered the defendant's premises to serve a writ, and was injured by a defect in the premises. Is the defendant liable? (1894, Blatt v. McBarron, 161 Mass. 21, 36 N. E. 468.)

The plaintiff was a Federal customs-officer, on duty on the defendant's wharf, with the defendant's permission, to prevent smuggling, and was injured by a defect in the wharf. Is the defendant liable? (1881, Low v. R. Co., 72 Me., 313.)

The plaintiff went into the defendant's building to make inquiry of some one about a servant whom she contemplated engaging, and was injured in a defective passageway. Is the defendant liable? (1892, Plummer v. Dill, 156 Mass. 426, 31 N. E. 128.)

The plaintiff was an employee of a person who stored goods in the defendant's warehouse, and while there on behalf of his employer was injured by a defect in

John M. Longyear, for personal injuries. From a judgment for defendant on verdict directed by the Court, plaintiff brings error. Affirmed. T. J. Dundon (E. J. Mapes and J. L. Heffernan, of counsel), for appellant.

Clark & Pearl, for appellee.

HOOKER, J. The Brice Manufacturing Company is an existing corporation, which formerly carried on a manufacturing business at Marquette. Its plant has been shut down for some years. Among other structures, it owned a small pump-house, located upon ground owned by a railroad company, under an arrangement between them. In the house was a small overshot water-wheel. The plaintiff, a girl between 12 and 13 years of age, was in the habit of passing this pump-house on the way to school, with her brothers and sisters; going across lots through the field, because it was nearer. For some time previous to the time of the accident through which plaintiff received her injury, a hole existed in the stone wall of the house inclosing the wheel, through which children went to play on the wheel. . . . On the day in question, the

the premises. Has he an action? (1907, Pauckner v. Wakem, 231 Ill. 276, 83 N. E. 202.)

The plaintiff was a policeman stationed on the defendant's premises to guard against violence by strikers to employees of an express company who were delivering goods to the defendant's building, He fell into an elevator shaft, by the fault of the defendant, and was injured. Is the defendant liable? (1908, Casey v. Adams, 234 Ill. 350.)

The plaintiff was sister-in-law and invited guest of the tenant of the defendant. The defendant was under contract to keep the premises in repair. A well in the yard had a loose cover, which somehow was off. The plaintiff, going out to the privy, fell into the well. Is the defendant liable? (1898, Barman v. Spencer, Ind., 49 N. E. 9.)

"If a lady who is invited to dinner goes in an expensive dress, and a servant spills something over her dress which spoils it, the master of the house would not be liable." Is this sound? (POLLOCK, C. B., in Southcote v. Stanley, 1856, 1 H. & N. 247.)

The deceased was a customer of the defendant's brewery slops, using them for his cows. Other customers had the slops delivered to them, but the plaintiff insisted on coming and stirring the slops himself, so as to be sure and get them thicker. The defendant let the deceased do this, rather than lose him as a customer. It did lose him, however, for one day the vat exploded, by the defendant's fault, and killed him. Is the defendant liable? (1902, Hupfer v. Distilling Co., 114 Wis. 279, 90 N. W. 191.)

The defendant was a railroad, and at its stockyard had cattle pens. S. was a shipper, using the pens on the day in question for a shipment of stock. The plaintiff had sold some stock to S., and agreed to deliver them to him at the pens on that day. It did not appear whether the stock were to be a part of S.'s shipment on that day or at any time. While engaged in delivering to S., the plaintiff was injured by the fall of a defective gate. Is the defendant liable? (1910, Woods v. R. Co., Mo. App., 130 S. W. 1123.)

NOTES:

"Firemen as licensees."

"Licensees, who are."

(H. L. R., VI, 323.)

(H. L. R., VI, 323; VII, 378; VIII, 120.)

"Liability to licensees: Firemen as licensees." (H. L. R., XVIII, 397.)]

brothers of plaintiff, on their way from school, crawled through this hole, and, mounting the wheel, were able by their weight to turn the wheel part way round and back. A younger sister, aged 8 years, got caught between the wheel and the wheel-pit. The plaintiff heard her screams, and went through the hole to her succor, and aided in rescuing her, and was herself injured. Suit was brought against the corporation and two of its directors, and the negligence alleged was in permitting the wheel to remain there, accessible to children. The Court directed a verdict in favor of the directors, and allowed the jury to determine the liability of the corporation, against which they rendered a verdict for $5,000. From a judgment in favor of the directors, the plaintiff has appealed. The only error assigned is the direction to return a verdict in favor of the directors.

The testimony shows that the buildings of the Brice Manufacturing Company were upon land owned by the railroad company, and that such land, together with the railroad, consisting of several tracks, was fenced. The plaintiff was not shown to have been invited upon the premises, but there is testimony from which the jury might reasonably conclude that children were in the habit of crossing the land of the defendant company and the railroad, and that neither company took steps to prevent it further than to keep up the fences. It is contended that this amounted to an invitation or license, but we think not. Mere toleration of a trespass does not alone constitute a license even, certainly not an invitation. . . .

It is a general and nearly uniform rule that there is no duty imposed upon the owner of premises to keep them in a suitable condition for those who come there for their own convenience merely, without the invitation of the owner. The origin of the alleged modern doctrine [to the contrary] may be said to practically rest upon what are called the "Turntable Cases," the first of which was the case of Railroad Co. v. Stout, 17 Wall. 657. The opinion was written by Mr. Justice Hunt in the year 1873. A child of 6 years of age was hurt while playing with others upon a turntable, by getting its foot caught between the ends of the rails. The turntable was in a remote place, not far from a public highway, on ground belonging to the company. The trial court charged the jury

that it was a dangerous

"That, to maintain the action, it must appear machine, one which, if unguarded or unlocked, would be likely to cause injury to children; . . . that the jury were to consider whether, situated as it was, as the defendant's property, in a small town, somewhat remote from habitations, there was negligence in not anticipating that injury might occur if it was left unlocked or unguarded; that if they did not have reason to anticipate that children would be likely to resort to it, or that they would be likely to be injured if they did resort to it, then there was no negligence."

The only question in the case was whether the child was a trespasser, and for that reason could not recover. This case practically laid down