Palmer v. Gordon

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. 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,) he may make himself liable to a trespasser by an *412 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.