tacked, being the defendant's foreman, knew that the dog was there; and in Blithe v. Topham [ante, No. 708] the pit was not dug for the purpose of doing mischief, but in the necessary cultivation and enjoyment of the defendant's property. The maxim "volenti non fit injuria" has no application in the present case, as the plaintiff had no notice of the penalty which he incurred.

BEST, C. J. I am of the opinion that this action is maintainable. If any thing which fell from me in Ilott v. Wilkes [ante, No. 712] were at variance with the opinion I now express, I should not hesitate to retract it. . . . But this case stands on grounds distinct from any that have preceded it. In general, spring-guns have been set for the purpose of deterring; the defendant placed his for the express purpose of doing injury; for, when called on to give notice, he said, "If I give notice, I shall not catch him." He intended, therefore, that the gun should be discharged, and that the contents should be lodged in the body of his victim, for he could not be caught in any other way. On these principles the action is clearly maintainable, and particularly on the latter ground. . . . In Deane v. Clayton, [ante, No. 711,] the plaintiff, the master of the dog, had a right to hunt in the wood adjoining that in which the dog was spiked; there was no visible boundary between the two woods; the manner in which the plaintiff and defendant occupied their respective properties was evidence of an understanding between them that the enjoyment should be mutual; and the dog was impelled onwards by his natural instinct in pursuit of the game. Looking at the authorities, therefore, Deane v. Clayton is out of the question; and Ilott v. Wilkes is an authority in point.

But we want no authority in a case like the present; we put it on the principle that it is inhuman to catch a man by means which may maim him or endanger his life, and, as far as human means can go, it is the object of English law to uphold humanity, and the sanctions of religion.

In

PARK, J. I adhere to the judgment I gave in Deane v. Clayton, but shall confine myself at present to the facts before the Court. the present case, I found my decision on the circumstance of the defendant having omitted to give notice of what he had done, and his even expressing a desire to conceal it. . . . Judgment for the plaintiff.

714. BARNES v. WARD

COMMON BENCH. 1850

3 C. B. 392

Ar the trial, before COLTMAN, J., at the sittings in Middlesex, after Easter term, 1847, it appeared that Jane Barnes was passing, between eight and nine o'clock at night, on the 26th of October, along a road which had on the one side of it a dead wall, and on the other a row

of houses, some of which were finished and some unfinished. It being dark, and no light near, she accidentally fell from a path which was on the road by the side of the houses, into the open area of one of the unfinished ones, which was shown to have been at that time in the possession of the defendant, and was killed by the fall. The area was separated from the path by a curbstone which was intended for the reception of iron rails.

On the part of the defendant, it was contended: first, that there was no sufficient evidence that the footpath was a public way; secondly, that a man has a right to make a hole in his own ground, and is not bound to fence an adjoining highway against such a hole; thirdly, that the third issue was not sustained, in its terms, by the evidence.

The learned judge told the jury that, if there was a public way abutting on the area, and it would be dangerous to persons passing, unless fenced, or a public way so near that it would produce danger to the public, unless fenced, the defendant would be liable, unless the accident was occasioned by want of ordinary caution on the part of the deceased.

The jury found that there was an immemorial public way abutting on the area, and gave a verdict for the plaintiff, with £300 damages.

The learned judge having given leave to the counsel for the defendant to move the Court, on the points suggested by him, a rule was obtained accordingly, to show cause why a nonsuit should not be entered.

On the argument of this rule, it was contended, on behalf of the defendant: . . . thirdly, that no such obligation existed as that alleged; for, that the owner of land is not bound to fence off an excavation in it by the side of a public road.

On the third point, the Court felt so much doubt and difficulty, that a second argument was directed, which took place in Easter term last, before WILDE, C. J., COLTMAN, J., CRESSWELL, J., and V. WILLIAMS, J. . . .

MAULE, J. . . . In the present case, the jury expressly found the way to have existed immemorially; and they must be taken to have found that the state of the area made the way dangerous for those passing along it, and that the deceased was using ordinary caution in the exercise of the right of way, at the time the accident happened.

The result is, considering that the present case refers to a newlymade excavation adjoining an immemorial public way, which rendered the way unsafe to those who used it with ordinary care, it appears to us, after much consideration, that the defendant, in having made that excavation, was guilty of a public nuisance, even though the danger consisted in the risk of accidentally deviating from the road; for the danger thus created may reasonably deter prudent persons from using the way, and thus the full enjoyment of it by the public is, in effect, as much impeded as in the case of an ordinary nuisance to a highway.

With regard to the objection, that the deceased was a trespasser on the defendant's land at the time the injury was sustained, it by no means follows from this circumstance that the action cannot be maintained. A trespasser is liable to an action for the injury which he does; but he does not forfeit his right of action for an injury sustained. Thus, in the case of Bird v. Holbrook, 4 Bingh. 628, 1 M. & P. 607, [ante, No. 713,] the plaintiff was a trespasser, and indeed a voluntary one, - but he was held entitled to an action for an injury sustained in consequence of the wrongful act of the defendant, without any want of ordinary caution on the part of the plaintiff, although the injury would not have occurred if the plaintiff had not trespassed on the defendant's land. This decision was approved of in Lynch v. Nurdin, 1 Q. B. 37, 4 P. & D. 677, and also in the case of Jordin v. Crump, 8 M. & W. 782, in which the Court, though expressing a doubt as to whether the act of the defendant in setting a spring-gun was illegal, agreed that, if it were, the fact of the plaintiff's being a trespasser would be no answer to the action.

For these reasons, we are of opinion that the declaration in this case discloses a good cause of action; and also that the third issue was properly found for the plaintiff.

The rule, therefore, must be discharged.

Rule discharged.

TORT, for personal injuries occasioned by spilling scalding water on the plaintiff.

At the trial in the Superior Court, before BISHOP, J., the evidence tended to show that the plaintiff, a boy fifteen years old, entered the restaurant of the defendant, not for the purpose of purchasing anything himself, but on the invitation of one of two other boys who accompanied him, and who proposed to stand treat; that, finding the defendant engaged with customers, the boys passed into the kitchen attached to the restaurant, and seated themselves in front of the stove with their feet in or on the edge of the oven; that having twice been ordered by the defendant to leave the kitchen, and, having disregarded the orders, the defendant went into the kitchen, and, saying, "I will show you how get my dog out," drew a pan of scalding water to and fro across the top of the stove, with a scraping noise, for the purpose of spilling the water on the stove and of frightening the boys away, and in so doing spilled water on the stove and thence on the legs of the boys, scalding them, but, as was admitted by the plaintiff, without intending to scald him.

I

The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.

H. H. Newton, for the defendant.

G. A. Brown, for the plaintiff.

HOLMES, J. This is an action of tort for personal injuries. We are to take it that the plaintiff, a boy, was a trespasser with some other boys in the kitchen attached to the defendant's restaurant, and that the defendant spilled water upon the stove for the purpose of frightening the boys away. He did not intend to scald them, but the water flew from the stove upon the legs of the boys. The question raised by the exceptions is whether the jury were warranted in finding the defendant liable.

It will be seen that this case falls between the cases of spring guns and the like, where the defendant is or may be in the same position as if he had been personally present and had shot the plaintiff, and the cases where, as against trespassers or licensees, railroads are held entitled to run trains in their usual way without special precautions. Chenery v. Fitchburg Railroad, 160 Mass. 211, 213, [post, No. 719]. In the case at bar the defendant, although not contemplating or intending actual damage, did an act specifically contemplating the plaintiff's presence and directed against him. He left the safe position of a landowner simply pursuing his own convenience and assuming that no one would break the law and thereby bring himself into danger. Just as a man may make himself liable to a negligent plaintiff by a later negligence, (Pierce v. Cunard Steamship Co., 153 Mass. 87, 89, [ante, No. 668,] he may make himself liable to a trespasser by an act that is done with reference to the trespasser's presence, and that sufficiently clearly threatens the danger which it brings to pass. A trespasser is not "caput lupinum." In the present case the only element of doubt was whether the danger to the plaintiff was sufficiently obvious under the circumstances. That question properly was left to the jury. Exceptions overruled.

716. ILLINOIS CENTRAL R. Co. v. LEINER. (1903, 202 Ill. 624, 629, 67 N. E. 98.) MAGRUDER, C. J. Whether, therefore, the deceased was a trespasser or not, the question remains whether there is evidence tending to show that he was killed through the wanton or reckless conduct of the appellant's employees, who were in charge of the trains whose collision caused his death. The question, whether a personal injury has been inflicted by wilful or wanton conduct or gross negligence, is a question of fact to be determined by the jury. . . . It is not always easy to define what degree of negligence the law considers equivalent to a wilful or wanton act. It is greatly dependent upon the particular circumstances of each case. In the case of an injury to a trespasser, a railroad company has been said to be liable for "such gross negligence as evidences wilfulness." (Illinois Central Railroad Co. v. Godfrey, 71 Ill. 500.) . . . It is such gross negligence as to imply a disregard of consequences or a willingness to inflict injury. (Lake Shore & Michigan Southern Railway Co. v. Bodemer, 139 Ill. 596.) . . .

717. SCHEUERMAN v. SCHARFENBERG

SUPREME COURT OF ALABAMA. 1909

163 Ala. 337, 50 So. 335

APPEAL from Morgan Circuit Court. Heard before Hon. D. W. SPEAKE. Action by Joe Scheuermann, pro ami, against William Scharfenberg, for damages for being shot by a spring-gun in an attempt to burglarize a store. Judgment for defendant and plaintiff appeals. Affirmed.

John C. Eyster, and Lowe & Tidwell, for appellant. . . .

MAYFIELD, J. This appeal presents but one question, which is as novel as it is difficult. The question is this: Is the owner of a storehouse, in which goods and other valuables are kept by him for sale and deposit liable in trespass to a would-be burglar of such store, who is shot by means of a spring gun placed in the store by the owner for the purpose of shooting persons who might attempt to burglarize it - the gun being discharged by the would-be burglar while in the attempt to enter, but after the breaking is completed? We have been unable to find any case exactly like it, and but few kindred ones.

1. Before there was any statute in England on the subject of spring guns, it was held that a mere trespasser, having no knowledge of the particular spot on which a spring gun was located, but having a general knowledge that there were spring guns in the wood trespassed upon, could not recover for being shot by one of such guns which he discharged while trespassing. Ilott v. Wilkes, 3 B. & Ald. 304, [ante, No. 712.] In another case, where plaintiff had climbed over defendant's wall to catch one of his own fowls, which had strayed onto defendant's premises, and was shot by defendant's spring gun, defendant was held liable. . . Bird v. Holbrook, 4 Bing. 628, [ante, No. 713.] There are other English cases, some holding the defendant liable, and others not, for injury suffered on account of spring guns, dangerous agencies, etc., placed upon one's premises, depending upon the facts of each particular case. England finally passed statutes upon the subject (St. 24 & 25 Vict. c. 100; St. 7 & 8 Geo. IV. c. 18, 5, 1), which made it a crime to place such dangerous agencies upon one's premises, save in the night-time, and never then except to protect the dwelling.

It will be observed, from these various decisions, that while a man may set spring guns and mantraps upon his own premises to protect them in the night-time from thieves and burglars, he must see to it that such guns or traps do not inflict injury upon those who go thereon for lawful purposes, and that one has no right to defend his property against mere trespassers by means of such deadly agencies. Liability as to mere trespassers who have no felonious intent depends also upon notice to them of the dangerous agency.