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Mar. 1910]

Opinion Per MOUNT, J.

public. It is the rule, as argued by the appellant, that an owner owes to a licensee no duty as to the condition of the premises, except that the owner should not knowingly permit the licensee to run upon hidden dangers, or wilfully cause him harm. McConkey v. Oregon R. &. Nav. Co., 35 Wash. 55, 76 Pac. 526. But to one invited upon premises, the owner is under obligation for reasonable security for the purpose for which the invitee is upon the land. Beehler v. Daniels, Cornell & Co., 18 R. I. 563, 29 Atl. 6, 49 Am. St. 790, 27 L. R. A. 512. Mr. Thompson, in his Commentaries on the Law of Negligence, at $ 1012, vol. 1, states the rule as follows:

“If a man establishes a private road, path or other way upon his own ground, and impliedly invites the public to use it, he is, according to some holdings, under an obligation to exercise reasonable care and diligence to keep it in a safe condition for the benefit of any one who may have to use it,that is to say, to keep it free from dangerous obstructions, pitfalls, etc.”

After referring to certain American and English cases, the same author, at $ 1015, continues :

“Some of the foregoing decisions are difficult to reconcile with the general rule of law already stated, that bare licensees take the premises of the land-owner as they find them, and come upon them at their own risk, and that he is under no duty to exert himself to keep them safe for his benefit. If the land-owner has been in the habit of allowing the public to make use of a private way while it was safe, and has, by some affirmative act of his own, endangered the passage upon it without giving the public any warning,--as by digging an unguarded pit by the side of it, it would seem that he ought to be held liable in damages for any injury thereby happening to any member of the public, on the ground that he has been guilty of a plain violation of social duty. But where a man establishes a private way of any sort for his own purposes merely, the mere fact that he is not so unneighborly as to exclude the public from the use of it, ought not, it should seem, to place him under any particular duty to care for it, to the end of promoting their safety."

Opinion Per MOUNT, J.

[58 Wash.

way

Mr. Wharton states the rule as follows:

“Nor am I justified in making excavations either on the path which I have permitted other persons to traverse, or so near a public road that travelers, in the ordinary aberration or casualties of travel, may stray or be driven over the line and be injured by falling into the excavation. But beyond this my liability to trespassers, voluntary or involuntary, does not go. I may make what excavations I choose on my own land, without fencing them in, provided they are not on a line over which I permit travelers to pass, or so near a public road that in them a traveler may unwittingly fall.” Wharton, Law of Negligence (2d ed.), $ 349.

And in 29 Cyc., page 466, as follows: "Where the public has been accustomed to use a private

it is negligence for the owner to make an unguarded excavation therein, or otherwise dangerously obstruct it, or to conduct his business in a manner dangerous to those passing, or to fail to keep it in repair." See, also, De Tarr v. Ferd. Heim Brewing Co., 62 Kan. 188, 61 Pac. 689 ; Campbell z. Boyd, 88 N. C. 129, 13 Am. Rep. 740; Phillips v. Library Co., supra; Graves v. Thomas, 95 Ind. 361, 48 Am. Rep. 727.

It is immaterial whether the appellant owned the land over which the way was used. Under the rule above stated, he would be liable if he made a dangerous excavation in the way, where he knew the public were invited and were accustomed to travel. We are of the opinion, therefore, that the complaint states a cause of action.

It is also argued that the court erred in denying appellant's motion challenging the sufficiency of the evidence to sustain a verdict. This argument is based upon the theory that the evidence fails to show a private way of necessity, or that the public had a legal right to use the road, or that the appellant owed any duty except to avoid wilful and wanton injury. The evidence very clearly shows, that the road in question was a well-defined and much traveled road; that it connected with the main traveled public highway to

Mar. 1910)

Opinion Per MOUNT, J.

a

the north; that for many years it had been closed by a gate at the public highway, and that people using the road had opened and closed this gate; that about two years before the accident, the gate had become dilapidated and was not thereafter used, and the road was kept open to the public. This clearly implied an invitation to the public, and any person having occasion there to use the same, and whether the road was originally intended as a private way or way of necessity is of no importance. The fact that the road was well defined and much used and was left open, was an invitation to the public as much as though a special notice had been posted authorizing its use. Under these conditions and under the authorities above cited, it was the duty of the appellant, or any other person making an excavation therein or digging a canal across the road, to take some precaution to warn persons lawfully there of danger. An excavation such as the one in question here, across a road where persons had a right to be after night, was in the nature of a trap.

It is also argued that the evidence shows that the respondent knew, or should have known, of the ditch, and should have avoided it in the exercise of ordinary care, and therefore may not recover. The evidence was conflicting upon these points, and the finding of the jury is conclusive.

Several objections are made to the instructions. The main points urged against the instructions are disposed of by what we have said above, and we shall not further discuss them. It is sufficient to say, however, that the instructions given by the court were clear and concise and covered the law of the case fully. No error was made either in the instructions given or in those requested and refused.

The judgment is therefore affirmed.
RUDKIN, C. J., DUNBAR, Crow, and PARKER, JJ., concur.

و

Opinion Per MOUNT, J.

[58 Wash.

[No. 8459. Department Two. March 25, 1910.]

C. H. DEIGHTON, Respondent, v. ARIE HOVER, Appellant.1

TELEGRAPHS AND TELEPHONES-WRONGFUL OPENING OF TELEGRAM— EVIDENCE SUFFICIENCY. The evidence is sufficient to show that defendant opened a telegram making plaintiff a cash offer for land, where it appears that it was delivered to defendant upon his offering to deliver it to the plaintiff, that he did not deliver it, but on the next day defendant closed a trade with the plaintiff for the land, which trade he had just previously refused to make, and after the trade attempted to dispose of the land to the party who had made the offer in the telegram.

SAME MEASURE OF DAMAGES. Under Rem. & Bal. Code, § 2977, giving treble damages for all loss and damages sustained by the wrongful opening of a telegram, where defendant, by wrongfully opening a telegram making plaintiff a cash offer for land, induced plaintiff to trade the land to the defendant for less than was offered, the measure of damages is the difference between the value of the land given and the value of that received, irrespective of the tentative offer, where it was probable plaintiff could have sold for its full value.

NEW TRIAL-MISCONDUCT OF COUNSEL-DISCRETION. It is not an abuse of discretion to refuse a new trial, asked because of a conversation held by respondent's counsel with a juryman, in a public place, in the presence of appellant's counsel, no reference to the case being made in the conversation.

Appeal from a judgment of the superior court for Benton county, Holcomb, J., entered April 30, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages. Affirmed.

Ernest L. Kolb and Happy, Winfree & Hindman, for appellant.

Henry J. Snively, Humphrey & Cole, and Linn & Boyle, for respondent.

MOUNT, J.-Plaintiff brought this action to recover treble damages, alleging in his complaint that the defendant had opened a telegram addressed to plaintiff, had learned the

1Reported in 107 Pac. 853.

Mar. 1910]

Opinion Per MOUNT, J.

contents of the message, and by reason thereof had made a trade with the plaintiff without informing the plaintiff of the telegram. The case was tried to the court and a jury, and verdict was returned in favor of the plaintiff for the sum of $1,400, but upon motion for a new trial, the court required a remission of $100 from the verdict. On this remission being made, a judgment was entered in favor of the plaintiff for $3,000. The defendant has appealed.

It appears that prior to February, 1908, the respondent owned one hundred and twenty acres of timber land in the state of Oregon. The appellant was engaged in the real estate business, and owned some land near Kennewick in this state. The respondent had been in the employ of the appellant. He had offered to exchange his land in Oregon to the appellant for certain land then owned by the appellant, but this offer was refused. The respondent thereupon requested his father-in-law, one L. M. Willeuts, residing in Duluth, Minnesota, to find a purchaser for the Oregon timber land. Mr. Willcuts entered into negotiations with the Weyerhauser Timber Company, which maintained an office at Cloquet, Minnesota, which negotiations resulted in an offer of $2,000 by that company for the land; whereupon Mr. Willcuts sent a message to the respondent by the Western Union Telegraph Company, as follows:

"Duluth, Minnesota, February 19, 1908. “C. H. Deighton, Kennewick, Washington.

“Weverhauser offers two thousand for the land. What shall I do?

L. M. WILLCUTS." This telegram was received at Kennewick on the day of its date. It was sealed in an envelope and delivered to the appellant, who said he was going out to where the respondent lived and would deliver the message to him. The appellant neglected to deliver the telegram to the respondent, and on the next day after its receipt, without informing the respondent about the message, entered into negotiations with him which resulted in the exchange of the respondent's timber

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