majority">Appleton, O. J.

It is objected that the plaintiffs’ declaration sets forth no sufficient cause of action. If so, the defendant should have demurred, for, after verdict, no defects in the declaration can be taken advantage of by motion in arrest.

The case comes before us on a motion for a new trial as against evidence. As no exceptions áre filed, we must presume that proper and needed instructions were given.

It appears in evidence that the defendant, at Portsmouth, N. H., agreed with the plaintiffs to take their vessel to the defendant’s wharf at Saco, there to be loaded by him with ice for Washington, D. C.; that.the plaintiffs took the vessel there to be loaded, and caused the vessel to be hauled to his wharf; that the wharf was unsafe; that while the defendant was loading the vessel, without fault on the part of the plaintiff, and through the insufficiency of the wharf, the vessel was grounded on the. rocks, whereby the same was materially injured, &c.

The plaintiffs contracted with the defendant to take their vessel to his wharf to be there loaded. If the plaintiffs were to pay wharfage, the defendant would be bound to exercise due diligence to keep his wharf safe for all who should have occasion to use it. Wendell v. Baxter, 12 Gray, 496. In Chapman v. Rothwell, El., Bl. & El., 168, the proprietor of a brewery was held liable in damages for injury and loss of life caused by permitting a trap door to *505be open without sufficient light or proper safeguards, in a passage-way through which access was had from the street to his office. The ground of the decision was that the defendant, by holding out the passage as the approach to his office and brewery, invited the party injured to go there, and was bound to use due care in providing for his safety. In Knight v. Portland & Saco Railroad Co., ante, p. 234, it was held that the railroad company was bound to beep the landing places safe and convenient for those who make use of their cars as a means of conveyance. "The keeper of an inn,” observes Bigelow, 0. J., in Sweeney v. Old Colony & Newport Railroad Co., 10 Allen, 368, " or other place of resort would be liable to an action in favor of a person who suffered an injury in consequence of an obstruction or defect in the way or passage, which was held and used as the common proper place of access to the premises.” This general principle was again affirmed in Elliot v. Pray, 10 Allen, 378.

The same principle is affirmed by the English Courts. In Indermauer v. Dames, 1 Law Rep., C. C. P. Cases, 275, the defendant left a hole unfenced upon his premises, into which the plaintiff, being rightfully there, fell. Held, that inasmuch as the plaintiff was upon the premises in lawful business, in the course of fulfilling a contract in which he (or his employer) and the defendant both had an interest, and the hole was, from its nature, unreasonably dangerous to persons not usually employed upon the premises,, but having a right to go there, the defendant was guilty of a' breach of duty towards him in suffering the hole to be unfenced. In delivering his opinion in Smith v. London and St. Katharine Docks Co., 3 Law Rep., C. C. P. Cases, 327, Bovill, C. J., uses the following language;—"The case, then, stands thus; a gangway was provided by the defendants as the only access to their vessel. The defendants were aware that it was dangerous, the plaintiff was not. The plaintiff comes to the spot, finds the gangway there, proceeds upon *506it, and falls into the water. The jury have found there was negligence on the part of the defendants and none on the part of the plaintiff. * * The gangway being placed there as the means of access to all persons having business on board the ship, it amounts to an invitation to persons having business on board the ship to go upon it, as was held with respect to the road in Corby v. Hill, 4 C. B. N. S., 556. The case comes, then, within the principle that persons inviting others on their premises, are answerable for anything in the nature of a trap.”

But here the plaintiffs were at the defendant’s wharf, at his request and for his benefit. In such case, the rule is clearly laid down in Carlton v. Franconia Iron and Steel Co., 99 Mass.- "The owner or occupant of land,” observes Mr. Justice Gray, "is liable in damages to those coming to it, using due cai’e, at the invitation, express or implied, on any business to be transacted with or permitted by him, for an injury occasioned by the unsafe condition of the land or the access to it, which is known to him aud not to them, and which he has negligently suffered to exist and has given them no notice of.” The plaintiffs’ vessel was at the defendant’s wharf for his benefit and at his request. It was injured without their fault, in consequence of the dangerous condition, of the wharf, which the defendant represented as safe and convenient, — for so we must assume the jury to have found the facts.

Motion overruled. — Judgment on the verdict.

Walton, Dickerson, Barrows, Danforth and Tapley, JJ., concurred.

Citation profile

How this case has been treated — in progress