Lewko v. Chas. A. Krause Milling Co. ( 1922 )

Vinje, C. J.

We are again called upon to distinguish between cases where the plaintiff is a trespasser or mere licensee and where he is an invitee or where he has a right to be, as in a public street or highway. Here the allegations of the complaint, construed most favorably to the plaintiff, as they should be, make him out at most only a licensee. He was on private property, perhaps <with the knowledge of the defendant and perhaps not. All the complaint alleges is that children were in the habit of playing on defendant’s land to its knowledge, not that it knew plaintiff played on its land, but it can be implied from this that it permitted them to do so. But mere permission or license does not imply invitation. Muench v. Heinemann, 119 Wis. 441, 447, 96 N. W. 800. So that at most he was only a licensee on private property. The law is well settled in this state and in most of the sister states that a mere licensee on private property takes the premises as he finds them. The owner owes him no duty save to refrain from active negligence rendering the premises dangerous. Cahill v. Layton, 57 Wis. 600, 16 N. W. 1; Muench v. Heinemann, 119 Wis. 441, 96 N. W. 800; Brinilson v. C. & N. W. R. Co. 144 Wis. 614, 129 N. W. 664; 20 Ruling Case Law, 51 et seq. The same rule applies to trespassers. Zartner v. George, 156 Wis. 131, 145 N. W. 971; Emond v. Kimberly-Clark Co. 159 Wis. 83, 149 N. W. 760; 20 Ruling Case Law, 57 et seq.

Where this court has held a defendant liable for a dangerous condition of premises as to licensees or trespassers it has been in cases such as Kelly v. Southern Wis. R. Co. 152 Wis. 328, 140 N. W. 60, and Ptak v. Kuetemeyer, 177 Wis. 262, 187 N. W. 1000, where the dangers were in public streets where children had a right to be; or in cases where the danger constituted a hidden death trap as did the electric wires in Meyer v. Menominee & M. L. & T. Co. 151 Wis. 279, 138 N. W. 1008, or an obscured pitfall in a licensed pathway as in Brinilson v. C. & N. W. R. Co. 144 Wis. 614, 129 N. W. 664, which was held to constitute active negligence.

Useful and not grossly negligent conditions and appliances on private property do not render the owner thereof liable to mere licensees or trespassers. To do so they must be of such a character as to constitute active negligence. The pit in question was open, obvious, and useful, and though dangerous to children, and perhaps to adults also, , it cannot be classed as a hidden trap- or a concealed death-dealing iástrumentality.

By the Court. — Order affirmed.