#### W. H. MONROE and Wife v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 1 December, 1909.)

Negligence — Vacant Lot — Permissive User — Licensee—Liability of Owner.

One who, with others, is accustomed to use, with the knowledge of the owner, a pathway across a vacant lot for his own convenience, without any enticement, allurement or inducement being held out to him by the owner, goes there at his own risk and enjoys the license subject to its concomitant perils; and while the owner may not place new and dangerous pitfalls and obstructions along the path without warning to > those likely to use it, and escape liability for an injury thereby directly caused to one of them without fault on his own part, he owes no such duty when the pitfall or obstruction has remained there continuously for some time, in this case for a period of two years. Bunch v. Edenton, 90 N. C., 431, cited and distinguished.

Appeal from W. J. Adams, J., April Term, 1909, of Cumbeb-LAND.

Tbe plaintiff sued to recover damages for personal injuries received by tbe feme plaintiff, O. B. Monroe, under tbe following circumstances: On Sunday nigbt, 14 June, 1903, tbe plaintiff was returning to ber borne from service at the Presbyterian Church, and, while walking through a vacant lot of tbe defendant, in tbe town of Fayetteville, fell into a pit and was severely and permanently injured, breaking her leg and some of ber ribs, and otherwise injuring ber. Tbe path along which she was walking was about eight feet wide and was clearly defined. Tbe path traversed diagonally an unused lot of tbe defendant, was unligbted at nigbt, and furnished a nearer approach to plaintiff’s residence. A large number of people used this path, and bad been accustomed to use it for their convenience, by nigbt and day, for more than two years prior to plaintiff’s accident. Tbe plaintiffs bad been using it, both nigbt and day, since tbe previous spring, and weeds and shrubs bad grown up around tbe borders of tbe pit, that concealed it from sight, and tbe plaintiff C. B. Moore did not know of its existence. The pit was left uncovered more than two years before plaintiff’s injury, when a bouse for tbe repairs of engines was removed. It was near tbe path — so near that a person traveling tbe path and unaware of it might by a misstep fall into it, though tbe path diverged at this point from its course to go around tbe pit. It was several feet deep and its bottom was covered with logs.

Tbe defendant offered no evidence, but moved tbe court to nonsuit tbe plaintiff, which motion was denied, and thereupon *375requested tbe judge to charge the jury to answer the first issue “No/’ which was l'efused, and further requested his Honor to charge the jury as follows: “The court charges you that, as a matter of law, the defendant owed the plaintiff no duty, except that it should not wantonly or willfully injure her, and there is no evidence in this case that the injury, if any there was, was done wantonly or willfully.” This instruction was refused. .

There was no exception to the charge of his Honor, and the case is presented upon the exception taken to the rulings of his Honor upon the questions as stated above.

The three issues, of defendant’s negligence, plaintiff’s contributory negligence, and damages, were submitted to the jury and answered in plaintiff’s favor, and damages to the amount of $3,000 fixed. From the judgment rendered on the verdict defendant appealed.

H. McB. Robinson, Terry Lyon and V. 0. Bullard for plaintiffs.

Rose & Rose for defendant.

MANNING, J\,

after stating the case: The conclusion reached by us, after a most careful consideration of this case, is that the motion of the defendant to nonsuit the plaintiff, at the close of the evidence, ought to have been allowed, and in refusing it his Honor was in error. The principle controlling the decision of this uase, and the doctrine generally accepted by the American and English courts, is stated with great clearness and precision by Chief Justice Bigelow in Sweeney v. Railroad, 10 Allen, 368; 87 Am. Dec., 644, as follows: “There can be no fault or negligence or breach of duty where there is no act or service or contract which a party is bound to perform or fulfill. All the cases in the books in which a party is sought to be charged on the ground that he has caused a way or other place to be encumbered or suffered' it to be in a dangerous condition, whereby accident or injury have been occasioned to another, turn on the principle that negligence consists in doing or omitting to do an act by which a legal duty or obligation has been violated. Thus a trespasser who comes on the land of another, without right, cannot maintain an action if he runs against a barrier or falls into an excavation there situated. The owner of the -land is not bound to protect or provide safeguards for wrongdoers. So a licensee who enters on premises by permission only, without any enticement, allurement or inducement being held out to him by the. owner or occupant, cannot recover damages for injuries caused *376by obstructions or pitfalls. He goes there at his own risk and enjoys the license, subject to its concomitant perils. No duty is imposed by law on the owner or occupant to keep his premises in a suitable condition for those who come there solely for their own convenience or pleasure, and who are not either expressly invited to enter or induced to come upon them by the purpose iox which the premises are appropriated and occupied, or by some preparation or adaptation of the place, for the use by customers or passengers, which might naturally and reasonably lead them to suppose that they might properly and safely enter thereon.” This doctrine has been approved by this Court in the following cases: Quantz v. Railroad, 137 N. C., 136; Peterson v. Railroad, 143 N. C., 260; McGhee v. Railroad, 147 N. C., 142; Briscoe v. Lighting Co., 148 N. C., 396; Bailey v. Railroad, 149 N. C., 169; Muse v. Railroad, 149 N. C., 443. It has also been approved in the following decisions of other courts, and by the text-book writers: Gillis v. Railroad, 59 Pa., 129; 98 Am. Dec., 317; Zoebish v. Tarbell, 10 Allen, 385; Railroad v. DeBoard, 91 Va., 700; Railroad v. Bingham, 29 Ohio State, 364; Railroad v. Griffin, 100 Ind., 221; Reardon v. Thompson, 149 Mass., 267; Redigan v. Railroad, 14 L. R. A. (Mass.), 276; Burbank v. Railroad, 4 L. R. A. (La.), 720; Benson v. Traction Co., 20 L. R. A. (Md.), 714; Manning v. Railroad, 20 L. R. A. (W. Va.), 271; 3 Elliott on Railroads, secs. 1250, 1251; Wharton on Neg., sec. 351; 7 Thompson on Neg., secs. 945, 946, 947, 949; Whitaker’s Smith on Neg., pp. 60, 61, 62, 63, and note. This doctrine is clearly distinguishable from that announced in Bunch v. Edenton, 90 N. C., 431, in which case it is held that liability exists where a pit is left open and unprotected so near a sidewalk or street that a person using the street, without concurring negligence, by misstep, falls into it and is injured. This doctrine is also held in Beck v. Carter, 68 N. Y., 283; Graves v. Thomas, 95 Ind., 361; Lepnick v. Gaddis, 72 Miss., 200; 48 Am. St. Rep., 547; Grumlich v. Warst, 86 Pa. St., 741. Nor does the application of this principle protect from liability the owner of a lot or a railroad company who, with knowledge of the user of his property as a pathway across or along it, places, without warning to those likely to use the pathway, a new and dangerous pitfall or obstruction. This is illustrated by the cases of Railroad v. DeBoard, 91 Va., 700; Graves v. Thomas, 95 Ind., 361; Beck v. Thomas, 68 N. Y., 283; Burton v. Railroad, 98 Ga., 783. This is further illustrated by this language of Wharton on Negligence, quoted in Graves v. Thomas, supra: “Nor am I justified in making excavations, either on the path which I have permit*377ted other persons to traverse, or so near a public .road that travelers, in the ordinary aberrations or casualties- of travel, may stray or be drivep. over tbe line and be injured by falling into tbe excavation.” The saíne doctrine finds expression in those cases like Troy v. Railroad, 99 N. C., 298; Byrne v. Railroad, 104 N. Y., 362, where the defendant was held liable because of the act of active negligence, as contradistinguished from passive negligence. Nor does the principle held to be decisive of this case in any way contravene or impinge upon the doctrine illustrated and applied in Finch v. Railroad (at this term) and Brittingham v. Stadiem (at this term) and Phillips v. Railroad, 124 N. C., 126. It must'commend itself as based upon sound reason and just principle that an owner of property, knowing that his property is frequently used by a large number of people, and such use acquiesced in by him, cannot, without giving warning, increase the peril and danger of such use, even though the use be solely for the convenience of those persons using it. They must, if they use it for their convenience, take it as they find it, with its concomitant perils, and at their own risk; but these perils- should not be increased by the owner having knowledge of the use, without notice of the increased hazard. In the present case there was no increase of the danger or risk by any act of the defendant. The pathway was used by the public solely for its own convenience, to make less the distance, than by the streets, between two points. It was not used by the public in transacting any business with the defendant or in reaching its warehouse, office, station or any place where it invited the public dealing with it to come. There was nothing to attract attention on the lot or to invite the public to come upon it, even from curiosity. The buildings that had been on the lot had-been removed for more than two years, and the lot was not used by the defendant for any purpose whatever that the evidence discloses. -Under the authorities cited, the plaintiff was using the property at her own peril, and the defendant, upon the facts proven, violated’no duty it owed her. While she was unfortunately injured and has suffered much in consequence of her injuries, it was her misfortune. For the reasons given, his Honor erred in not sustaining the motion of defendant to non-suit the plaintiff. Our judgment will be certified to the Superior Court of Cumberland County, that judgment of nonsuit be entered.

Error.