defendant liable in a suit for the value of the fowls thus destroyed. Sherman, J., differed radically from the views of Holroyd, J., in Ilott v. Wilkes. 104 It does not appear from the facts as stated in the report of Johnson v. Patterson, that the poisoned meal operated as a bait to the fowls, as did the scented meat to the dogs in the case of Townsend v. Wathen;105 at least, the decision of the court did not proceed upon that ground.

§ 967. Setting such Instruments of Destruction to Protect Property from Felonious Depredations.a-It is stated as a general rule, that "a man may repel force by force in defense 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-defense."106 There are passages in which it seems to be implied that this right does not exist where the felony is not of a nature to be committed by force.107 The question has arisen, in this country, to what extent a man may protect his shop from nocturnal intruders by implements of destruction. There would be no question as to the right of the property owner to protect his shop by this means, if the offense of breaking and entering the same were technical burglary at common law; but such it is not.108 Therefore, in a State in which the breaking and entering of a shop is declared to be burglary, this question presents no difficulty, and accordingly it was there held that a person may protect his shop by setting a spring-gun therein, but in such a manner as not to imperil the safety of the general public.109 In an earlier case, in the Court of Appeals of Kentucky,110 a negro slave, in attempting to enter a warehouse at night for purposes of theft, was killed by a spring-gun. The robbery attempted in this case, being by a slave, was simply a misdemeanor, while in a white person it would have been a felony. The court held, that while this means of defense would be unjustifiable against a slave, he being known to be such, yet, in the absence of such knowledge, the calamity must be taken as a "misadventure." "The time and the circumstances constituted a case of necessity that legitimated the means resorted to."

104 Supra, 3 Barn. & Ald. 304.

105 Supra, 9 East 277.

a This section is cited in §§ 142, 679, 945, 1024, 1055, 1073.

108 1 East P. C. 271. See also 1 Hale P. C. 488; Fost. C. L. 274; 1 Bishop's Cr. Law, § 853.

107 4 Bla. Comm. 180; 1 Bishop's Cr. Law, § 853.

109 1 Hale P. C. 557, 558.

109 The State v. Moore, 31 Conn.

479.

110 Gray v. Combs, 7 J. J. Marsh. (Ky.) 478.

ARTICLE IV. DUTY OF PROPRIETOR TO PERSONS COMING ON HIS PREMISES BY INVITATION, EXPRESS OR IMPLIED.

970. Degree of care required of 976. Pleading: averment that the

property owner in keeping

his premises safe.

971. Degree of care required of one who invites another as a social guest.

plaintiff was upon the premises by invitation.

977. Evidence in these cases.

§ 968. Duty to Use Reasonable Care to Keep One's Premises Safe for the Benefit of Persons Expressly or Impliedly Invited Thereon.a_ On the contrary, the owner or occupier of real property is under the duty of exercising reasonable or ordinary care and prudence to the end of keeping his premises safe for the benefit of those who come upon them by his invitation, express or implied; and if, through a neglect of this duty, they are, without negligence or fault of their own, injured by reason of any negligent defect therein, he must pay damages.111 The person so invited to come upon the premises of the other,

a This section is cited in § 1228. 11 Sweeney v. Old Colony &c. R. Co., 10 Allen (Mass.) 368; Bennett v. Louisville &c. R. Co., 102 U. S. 577; Tomle v. Hampton, 129 Ill. 379; s. c. 21 N. E. Rep. 800; Nichols v. Washington &c. R. Co., 83 Va. 99; s. c. 5 Am. St. Rep. 257; 5 S. E. Rep. 171; Indiana &c. R. Co. v. Barnhart, 115 Ind. 399; s. c. 13 West. Rep. 425; 16 N. E. Rep. 121; Diamond State Iron Co. v. Giles, 7 Houst. (Del.) 557; s. c. 11 Atl. Rep. 189; 9 Cent. Rep. 577; Pottstown Iron Co. v. Fanning, 114 Pa. St. 234; Welch v. McAllister, 15 Mo. App. 492; Dush v. Fitzhugh, 2 Lea (Tenn.) 307; Brosnan v. Sweetser,

127 Ind. 1; s. c. 26 N. E. Rep. 555; Atlantic Cotton Seed Oil Mills v. Coffey, 80 Ga. 145; s. c. 12 Am. St. Rep. 244; 4 S. E. Rep. 759; O'Callahan v. Bode, 84 Cal. 489; s. c. 24 Pac. Rep. 269; James v. Ford, 30 N. Y. St. Rep. 637; s. c. 9 N. Y. Supp. 504; Engel v. Smith, 82 Mich. 1; s. c. 46 N. W. Rep. 21; Homer v. Everett, 47 N. Y. Super. 298; Clopp v. Mear, 134 Pa. St. 203; s. c. 1 Atl. Rep. 504; 25 W. N. C. 574; 21 Pittsburgh L. J. (N. S.) 50; 47 Philadelphia Leg. Int. 374; O'Donnell v. Patton, 117 Mo. 13; s. c. 22 S. W. Rep. 903; Boyd v. Graham, 5 Mo. App. 403. Compare Harriman V. Pittsburgh &c. R. Co., 45 Ohio St.

is entitled to assume that they will be in a reasonably safe condition.112 He must not expose them to hidden dangers of which they are not aware, but of which he is or may be by the exercise of reasonable care, aware, especially if the danger is in the nature of a trap.113 To bring a case within this rule, it is not at all necessary that the person invited to come upon the premises should have had any business that would or would not be of benefit to the owner or occupier.114 But it seems that an express invitation, in the intendment of the law, extends to the particular occasion only unless its terms import otherwise; for we find a holding to the effect that an invitation extended by railway employés (assuming that they could have authority to extend such invitation), to a child to come into the switch yard, can not be made the basis of an action against the company for the death of the child while in the yard three weeks after such invitation.115

§ 969. Doctrine that the Proprietor or Occupier Owes a Duty of Protection to Any One Lawfully on his Premises.-Some courts, disregarding distinctions relating to trespassers, intruders, bare licensees, etc., place the doctrine on the broad and just ground that the owner or occupier of premises is bound to exercise ordinary care to the end of keeping his premises in such condition that they will not, by reason of any insecurity or insufficiency, injure any person rightfully in, around, or passing by them,-at the same time holding that such owner or occupier is not an insurer against accidents which may happen from the condition of the premises.116 The distinction is that the person coming upon the premises to whom this duty of care is due, must not come as a mere trespasser or wrong-doer, but for some purpose lawful in itself, and such as the owner or occupier might reasonably expect to bring him there.117 This being the rule, if the person injured is rightfully upon the premises, it will make no difference with reference to his right of action for the injury whether he is there as a licensee or by invitation.118 One court has carried the doctrine so far as to hold that the fact that the person injured was a trespasser will not prevent him from recovering damages from the owner or

11; s. c. 12 N. E. Rep. 451; 9 West. 20 Ky. L. Rep. 309; s. c. 46 S. W. Rep. 443. Rep. 5 (not to be rep.).

112 Rangers

V. Toronto Public School Board, 23 Ont. App. 597.

113 Corby v. Hill, 4 C. B. (N. S.) 556; 4 Jur. (N. S.) 512; 27 L. J. (C. P.) 318; Eisenberg v. Missouri Pac. R. Co., 33 Mo. App. 85.

114 Hartman v. Muehlebach, 64 Mo. App. 565; s. c. 2 Mo. App. Rep. 956. 115 Jackson v. Louisville &c. R. Co,,

116 Ryder v. Kinsey, 62 Minn. 85; s. c. 64 N. W. Rep. 94.

117 Newark Electric Light &c. Co. v. Garden, 78 Fed. Rep. 74; 23 C. C. A. 649; 39 U. S. App. 416.

118 Pomponio v. New York &c. R. Co., 66 Conn. 528; s. c. 32 L. R. A. 530; 34 Atl. Rep. 491.

occupier, where he did not know that he was trespassing, or where the trespass was purely technical, and such as the trespasser might reasonably suppose the owner would permit without objection, and which did not cause any appreciable injury or inconvenience to the owner.119 The doctrine of this paragraph ought to extend to the protection of every public officer, rightfully coming upon the premises of a private owner in the execution of the duties of his office; but when we come to that subject we shall find a regrettable difference of opinion.120

§ 970. Degree of Care Required of Property Owner in Keeping his Premises Safe.-In these cases-if we except the case of passenger elevators in buildings, separately considered,121-the law is reasonable, and does not demand of an owner of property more than the exercise of ordinary care, with respect to the rights of third persons;121a but, on the other hand, it does demand the exercise of due, reasonable or ordinary care.122 Under the operation of this principle, it is said to be a general rule that where an appliance, machine, or structure, not obviously dangerous, has been in daily use for years, and has uniformly proved adequate, safe, and convenient, it may be further continued without the imputation of negligence,123 although it might have been made safer at slight expense.124 So, it has been held that a house-owner need not explore for latent defects in a platform between his front steps and the sidewalk, where the platform has been built only seven or eight years, has always been kept painted, and shows no indication that it is unsafe.125 On the same principle, it has been held that the proprietor of a yard used for storage purposes;

119 Lowe v. Salt Lake City, 13 Utah Co., 78 Hun (N. Y.) 235; s. c. 28 91; s. c. 44 Pac. Rep. 1050. N. Y. Supp. 819; 59 N. Y. St. Rep. 879.

120 Post, §§ 981, 982.

121 Post, § 1075, et seq.

121a Martin v. Pettit, 117 N. Y. 118, 124; s. c. 26 N. Y. St. Rep. 919; 22 N. E. Rep. 561; 5 L. R. A. 794; reversing s. c. sub nom. Wasson v. Pettit, 49 Hun (N. Y.) 166; s. c. 16 N. Y. St. Rep. 778. See the following cases decided with reference to this principle: Bond v. Smith, 113 N. Y. 378; s. c. 22 N. Y. St. Rep. 666; 21 N. E. Rep. 128. Circumstances under which it is a question for a jury whether it was negligence for one, knowing that the side of a coal-bin had been weakened, to remove all the coal from one bin, leaving a mass of coal in the adjoining bin thirty-five or forty feet high, and also whether the adjoining bin was sufficiently braced: Davis v. New York &c. R.

122 Fisher v. Jansen, 30 Ill. App. 91. 123 Lafflin v. Buffalo &c. R. Co., 106 N. Y. 136; s. c. 12 N. E. Rep. 599; 7 Cent. Rep. 793. This case contains an illustration of the principle with reference to the platform of a railway station which was eight inches higher than the lower step of the car and one foot seven inches distant therefrom. It is submitted, on what has preceded, that the case was improperly decided upon its facts.

124

Egan v. Berkshire Apartment Asso., 31 N. Y. St. Rep. 545; s. c. 10 N. Y. Supp. 116.

125 Baddeley v. Shea, 114 Cal. 1; s. c. 33 L. R. A. 747; 45 Pac. Rep. 990.

discharges his duty to those rightfully coming upon the premises if, in securing a gate which forms a part of the fence, he uses those devices which, under the circumstances, would appear to a reasonably prudent man to be safe, and is not bound to adopt such appliances as experience has shown to be safe. 126 But, as hereafter seen,127 there is a limit to this principle in cases where the thing which causes the injury is a nuisance per se, such as an open and unguarded area in a sidewalk.128 In such cases the fact that the public have for many years escaped injuries from the nuisance is attributable to their good. fortune, and is not ascribed to lawful conduct on the part of the author of it. On the same theory, it has been reasoned-and the reasoning applied so as to exonerate a defendant,-that if there is no reason to apprehend injury to any person from the dropping of materials from platforms, employed in the interior construction of a building, there is no duty to adopt special precautions to prevent such an injury.129 The rule which exacts reasonable care does not demand that the property owner should have actual notice of the defect in his premises, where he impliedly invites members of the public to come thereon to deal with him; since, under such circumstances, he is chargeable with notice of any defect which would have been discovered by a reasonable inspection; and the rule of ordinary or reasonable care demands such an inspection.130

§ 971. Degree of Care Required of one who Invites Another as a Social Guest.-Where one visits the private house of another, as a social guest, the owner is bound to take the same care of him that he takes of himself and the other members of his establishment, and no more. Thus, a declaration averred that the defendant was possessed of a 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 which the plaintiff, by the permission of the defendant, and with his knowledge, and without any warning from him, lawfully opened for the purpose aforesaid, as a door which was in proper condition to be opened; nevertheless, by and through the mere carelessness, negligence and default of the defendant, the door was then in an insecure and dangerous condition, and unfit to be opened, and by reason of the said door being in such an insecure and dangerous condition, and of the then careless

120 Flanagan v. Atlantic &c. Asphalt Co., 37 App. Div. 476; s. c. 5 Am. Neg. Rep. 694; 56 N. Y. Supp. 18.

127 Post, 1200, et seq.

129 Buesching v. St. Louis Gas

Light Co., 73 Mo. 219; reversing ́s. c. 6 Mo. App. 85.

129 Angus v. Lee, 40 Ill. App. 304. 130 Dunn v. Durant, 9 Daly (N. Y.)

389.