Dixon v. Swift , 98 Me. 207 ( 1903 )

Strout, J.

Defendants were the owners operating a rendering plant at East Deering, and were in the business of rendering tallow, etc. The premises were on the side of Presumpscot Street, and about thirty rods from the street. They were unenclosed, and- an open driveway led from the street to the factory. The engine-house was at the northerly end of the factory building, and the two were connected by a narrow covered passageway, seven and nine-tenths feet wide. At its easterly end there was a door five and nine-tenths feet high and two and twenty-five hundredths feet wide. The threshold was one and one-tenth foot from the ground. This door had no latch; it swung outward and was fastened pn the inside by a rope wound upon a nail in the casement. From the southerly side of the passageway a door led to the main building, and opposite that was a door to the engine-room. On the southerly side of the passageway there were four tanks, one of them in front of the easterly door to the passageway, and about one foot distant therefrom; it was a little more than five feet by three and one-half, feet in size, and three feet deep. The top of this tank was one and four-tenths feet above the cement floor, and over it was a cover with a hinge, which could be turned up when desired for the purposes of the company. When the cover was down, it was three-tenths of a foot below the threshold of the easterly door.

On the day of the accident, November seventh, 1901, this tank contained about three feet of water, covered by fat, heated to a temperature of about 200 degrees. A few minutes before the accident a servant of defendants had raised the cover of this tank, for the purpose of skimming the fat, and went away to attend to some other business, leaving the cover up and the tank uncovered. While the testimony is conflicting, the weight of evidence is, that the easterly door in close proximity to this tank was then open, — certainly not fastened. No sign or other warning of danger was posted at that door. It was occasionally used by others than servants of the defendants.

William J. Dixon, plaintiff’s intestate, went in through this easterly door, and immediately stepped or fell into the tank, and was so badly scalded and burned that he died the following day. Plaintiff seeks to recover damages for the injury.

The conditions existing there at that time were very dangerous. If the deceased had gone there upon business, connected with the company, and was ignorant of the exposed tank, and in the exercise of due care, and had received an injury therefrom, the defendants would unquestionably be liable. In such case, he would have been there by the implied invitation of defendants; and to him they would have owed a duty to make the entrance to their works reasonably safe, or to have given ample warning of their dangerous condition. No duty was owed to a trespasser or mere licensee, save to abstain from wanton injury. Such person must take the premises as they are in fact, and he assumes all risk of injury from their condition. So held in this State in Parker v. Portland Publishing Company, 69 Maine, 173, 31 Am. Rep. 262; Campbell v. Portland Sugar Company, 62 Maine, 561. We do not understand that the learned counsel for the plaintiff claims otherwise.

The question recurs, whether plaintiff’s intestate was there, as a trespasser, licensee, or by invitation of defendants. It is not claimed that he was on any business connected with that of the defendants. He had a gratuitous message to deliver to one of defendant’s servants, but it had no relation to the business there conducted. He was a resident of another state, on his vacation at the time. He was acquainted with one or more of defendants’ servants employed at the rendering-works, and presumably intended to call upon them socially. At best, he was a mere licensee, indulging his curiosity to look over the plant, where he had been on previous occasions. Toward him defendants owed no duty, except they should not wantonly injure him. The negligence of defendants’ servant in leaving that tank, with its heated contents, open and exposed, imposed no liability upon them to this licensee. Nothing appears in the case which can be construed as an invitation to the intestate to enter that door, or to be on any part of defendants’ premises. The cases cited by plaintiff, such as Low v. Grand Trunk Railway, 72 Maine, 313, 39 Am. Rep. 331; Stratton v. Staples, 59 Maine, 94, and Campbell v. Sugar Co. supra, were all cases where the party entered by the implied invitation of the proprietor. To such, of course, the duty was owed that the premises should be reasonably safe.

Upon the ground of due care by the intestate, it is difficult to perceive that it was exercised by him. The day was clear and bright; the door was open; the tank cover raised and leaning against the wall, a few inches from the entrance. If he had looked at all, it seems incredible that he would not have seen that open tank, directly in front of him, and about one foot distant. It is argued that the color of the hot fat was so near the color of the greasy cement floor, that he was deceived. That is possible, but it seems improbable.

But upon the ground that he was a mere licensee, to whom no duty was owed, there must be, Judgment for defendants.