loquitur" to be applicable. "The defendants were under the common law liability to keep the bridge in safe condition for the public using the highway to pass under it;" and when a brick fell out of the pier of the bridge without any assignable cause except the slight vibration caused by a passing train," it was for the defendants to show, if they could, that the event was consistent with due diligence having been used to keep the bridge in safe repair ( ƒ ). This decision has been followed, in the stronger case of a whole building falling into the street, in the State of New York. 66 Buildings properly constructed do not fall without adequate cause" (g).

• It

In a later case (h) the occupier of a house from which a lamp projected over the street was held liable for damage done by its fall, though he had employed a competent person (not his servant) to put the lamp in repair: the fall was in fact due to the decayed condition of the attachment of the lamp to its bracket, which had escaped notice. was the defendant's duty to make the lamp reasonably safe, the contractor failed to do that therefore the defendant has not done his duty, and he is liable to the plaintiff for the consequences" (i). In this case negligence on the contractor's part was found as a fact.

Combining the principles affirmed in these authorities, we see that the owner of property abutting on a highway is under a positive duty to keep his property from being a cause of danger to the public by reason of any defect either in structure, repair, or use and management, which reasonable care and skill can guard against.

Distinctions. But where an accident happens in the course of doing on fixed property work which is proper of itself, and not usually done by servants, and there is no

(f) Per Cur. L. R. 6 Q. B. at pp. 761, 762.

(g) Mullen v. St. John, 57 N. Y. 567, 569.

(h) Tarry v. Ashton (1876), 1 Q. B. D. 314, 45 L. J. Q. B. 260.

(i) Per Blackburn J. at p. 319.

proof either that the work was under the occupier's control or that the accident was due to any defective condition of the structure itself with reference to its ordinary purposes, the occupier is not liable (k). In other words, he does not answer for the care or skill of an independent and apparently competent contractor in the doing of that which, though connected with the repair of a structure for whose condition the occupier does answer, is in itself merely incident to the contractor's business and under his order and control.

There are cases involving principles and considerations very similar to these, but concerning the special duties of adjacent landowners or occupiers to one another rather than any general duty to the public or to a class of persons. We must be content here to indicate their existence, though in practice the distinction is not always easy to maintain (1).

Position of licensees. Thus far we have spoken of the duties owed to persons who are brought within these risks of unsafe condition or repair by the occupier's invitation

(k) Welfare v. London & Brighton R. Co. (1869), L. R. 4 Q. B. 693, 38 L. J. Q. B. 241; a decision on peculiar facts, where perhaps a very little more evidence might have turned the scale in favour of the plaintiff.

(1) See Bower v. Peate (1876), 1 Q. B. D. 321, 45 L. J. Q. B. 446; Hughes v. Percival (1883), 8 App. Ca. 443, 52 L. J. Q. B. 719; and cp. Gorham v. Gross, 125 Mass. 232.

Position of licensees. As stated in the text the licensee must assume the ordinary risks of the place where the license is to be enjoyed. Vanderbeck v. Hendry, 34 N. J. L. 467; Metcalfe v. Cunard Steamship Co., 147 Mass. 66. At the same time the licensee is liable for damages resulting from his negligence in the performance of the act or excessive use of the privilege. Selden v. Del. & H. Canal Co., 29 N. Y. 634; McKnight v. Ratcliff, 44 Pa. St. 159; Dean v. McLean, 48 Vt. 412; Eaton v. Wenn, 20 Mich. 156; Norton v. Craig, 68 Me. 275; Smith v. Amer. Institute, 9 Daly, 526; Gardner v. Rowland, 2 Ired. 247; Dempsey v. Kipp, 62 Barb. 311; Luford v. Putnam, 35 N. H. 563; Murray v. Gibson, 21 Ill. App. 488; Cook v. Stearns, 11 Mass. 533; Breitenbach v. Trowbridge, 64 Mich. 393; 31 N. W. Rep. 402; Fletcher v. Evans, 140 Mass. 241; Cushing v.

on a matter of common interest, or are there in the exercise of a right. We have still to note the plight of him who comes on or near another's property as a "bare licensee." Such an one appears to be (with the possible exception of a mortgagee in possession) about the least favoured in the law of men who are not actual wrongdoers. He must take the property as he finds it, and is entitled only not to be led into danger by "something like fraud” (m).

Persons who by the mere gratuitous permission of owners or ocupiers take a short cut across a waste piece of land (n), or pass over private bridges (o), or have the run of a building (p), cannot expect to find the land free from holes or ditches, or the bridges to be in safe repair, or the passages and stairs to be commodious and free from dangerous places. If the occupier, while the permission continues, does something that creates a concealed danger to people availing themselves of it, he may well be liable (q). And he would of course be liable, not for failure in a special duty, but for wilful wrong, if he purposely made his property dangerous to persons using ordinary care, and then held out his permission as an inducement to come on it. Apart from this improbable case, the licensee's rights are measured, at best, by the actual state of the property at the time of the licence.

"If I dedicate a way to the public which is full of ruts and holes, the public must take it as it is. If I dig a pit

(m) Willes J., Gautret v. Egerton (1867), L. R. 2 C. P. at p. 375.

(n) Hounsell v. Smyth (1860), 7 C. B. N.

S. 731, 29 L. J. C. P. 203.

(0) Gautret v. Egerton (1867), L. R. 2 C. P. 371, 36 L. J. C. P. 191.

(p) Sullivan v. Waters (1864), 14 Ir. C. L. R. 460.

(g) Corby v. Hill (1858), 4 C. B. N. S. 556, 27 L. J. C. P. 318, p. 635, above.

Adams, 18 Pick. 110; Ferrin v. Symonds, 11 N. H. 368; Van Brunt v. Schenck, 13 Johns. 414; Edelman v. Yeakel, 27 Pa. St. 26; Faulkner v. Anderson, Gilmer, 221; Jewell v. Mahood, 44 N. H. 374; Ballard v. Noaks, 2 Ark. 45.

in it, I may be liable for the consequences: but, if I do nothing, I am not " (r).

The occupier of a yard in which machinery was in motion allowed certain workmen (not employed in his own business) to use, for their own convenience, a path crossing it. This did not make it his duty to fence the machinery at all, or if he did so to fence it sufficiently; though he might have been liable if he had put up an insecure guard which by the false appearance of security acted as a trap (s). The plaintiff, by having permission to use the path, had not the right to find it in any particular state of safety or convenience.

"Permission involves leave and licence, but it gives no right. If I avail myself of permission to cross a man's land I do so by virtue of a licence, not of a right. It is an abuse of language to call it a right: it is an excuse or licence, so that the party cannot be treated as a trespasser" (t). In the language of Continental jurisprudence, there is no question of culpa between a gratuitous licensee and the licensor, as regards the safe condition of the property to which the licence applies. Nothing short of dolus will make the licensor liable (u).

Host and guest. Invitation is a word applied in common speech to the relation of host and guest. But a guest (that is, a visitor who does not pay for his entertainment)

(r) Willes J., L. R. 2 C. P. at p. 373. (8) Bolch v. Smith (1862), 7 H. & N. 736, 31 L. J. Ex. 201.

(t) Martin B., 7 H. & N. at p. 745. Batchelor v. Fortescue (1883), 11 Q. B. Div. 474, 478, seems rather to stand upon the ground that the plaintiff had gone out of his way to create the risk for himself. As between himself and the defendant, he had no title at all to be where he was. Cp. D. 9. 2. ad leg. Aquil. 31 ad fin. " culpa ab eo exigenda non est, cum divinare non potuerit an per eum locum aliquis transiturus sit. "In Ivay

v. Hedges (1882), 9 Q. B. D. 80, the question was more of the terms of the contract between landlord and tenant than of a duty imposed by law. Quaere, whether in that case the danger to which the tenant was exposed might not have well been held to be in the nature of a trap. The defect was a non-apparent one, and the landlord knew of it.

(u) Cp. Blackmore v. Bristol and Exeter R. Co. (1858), 8 E. & B. 1C35, 27 L. J. Q. B. 167, where it seems that the plaintiff's intestate was not even a licensee; but see 11 Q. B. D. 516.

has not the benefit of the legal doctrine of invitation in the sense now before us. He is in point of law nothing but a licensee. The reason given is that he cannot have higher rights than a member of the household of which he has for the time being become, as it were, a part (x). All he is entitled to is not to be led into danger known to his host, and not known or reasonably apparent to himself.

On the same principle, a man who offers another a seat in his carriage is not answerable for an accident due to any defect in the carriage of which he was not aware (y).

It

Liability of licensor for "ordinary negligence." may probably be assumed that a licensor is answerable to the licensee for ordinary negligence (z), in the sense that his own act or omission will make him liable if it is such that it would create liability as between two persons having an equal right to be there: for example, if J. S. allows me to use his private road, it will hardly be said that, without express warning, I am to take the risk of J. S. driving furiously thereon. But the whole subject of a licensee's rights and risks is still by no means free from difficulty.

(x) Southcote v. Stanley (1856), 1 H. & N. 247, 25 L. J. Ex. 339. But quaere if this explanation be not obscurum per obscurius. Cp. Abraham v. Reynolds, 5

H. & N. at p. 148, where the same line of thought appears.

(y) Moffatt v. Bateman (1869), L. R. 3 P. C. 115.

(z) Horace Smith, 38 Campbell, 119.

Host and guest. A traveler who pays for being entertained is entitled to the protection of his property afforded by the common law. Curtis v. Murphy, 63 Wis. 4; 53 Am. Rep. 242; Russell v. Fagan (Del.), 8 At. Rep. 258; Walling v. Potter, 35 Conn. 183; Manning v. Wells, 9 Humph. 746; 51 Am. Dec. 688; Clute v. Wiggins, 14 Johns. 175; 7 Am. Dec. 451; Horner v. Harvey, 3 N. M. 197; 5 Pac. Rep. 329.

A "boarder" is a resident who is entertained at a special rate and for an agreed time. To him the keeper's obligation is near to that of a bailee. Chamberlain v. Masterson, 26 Ala. 371; Vance v. Throckmorton, 5 Bush, 41; Neal v. Wilcox, 4 Jones L. 46; 67 Am. Dec. 266; Shoecraft v. Bailey, 25 Ia. 553; Hancock v. Rand, 94 N. Y. 1; 46 Am. Rep. 112.

A "visitor" is one entertained temporarily and without charge. Gastenhoffer v. Clair, 10 Daly, 265; Kopper v. Willis, 9 Id. 460; Carter v. Hobbs, 12 Mich. 52; 83 Am. Dec. 762; Fitch v. Custer, 17 Hun, 126.