258 P. 394 | Cal. Ct. App. | 1927
This is an action to recover damages for personal injuries sustained by plaintiff when a steel fishing-rod, which he was carrying, came in contact with a sagging wire of the defendant's power line. The jury returned a verdict in favor of defendant, and judgment was entered *466 accordingly. The plaintiff has appealed from the judgment.
The action is based upon the alleged negligence of the defendant in allowing the power wire to remain in such sagging condition. Respondent contends that the plaintiff was a mere licensee on the defendant's right of way, and that the judgment, therefore, must be affirmed, there being no proof or claim that the defendant wilfully or wantonly injured the plaintiff. Appellant contends that he was an invitee of the defendant, for whose safety the latter was bound to exercise ordinary care, commensurate with the dangerous character of the agency under its control.
The accident occurred while plaintiff was on a fishing trip along Shovel Creek, near Klamath Hot Springs, in Siskiyou County, on land owned by the Klamath Hot Springs Hotel Company. The company there owns about two thousand acres of land, through which Shovel Creek flows for about two and a half miles. "Fishing is one of the attractions of the place." No objection has been made "to the public coming in and fishing on this property." "The public has availed itself of the opportunity to fish in this stream on this property for the past five or six years. . . . Fishing was encouraged so far as guests were concerned." "There is lots of people from around the county here that goes up on Sundays that never patronize the hotel, that camp on the creek and along the river there. Of course, people coming from any distance, why, they usually stay at the hotel. Probably about seventy-five per cent of the fishermen are guests of the hotel and twenty-five per cent not guests." The plaintiff was not a guest at the hotel and had no business dealings there. He testified: "I did not stay at the hotel because I am camping outside every time when I go out. . . . I used to go up Shovel Creek several times each season. I always saw lots of people up there fishing. . . . I have seen lots of people fishing in this stream near the place where I was hurt at previous times. . . . Nobody told me I couldn't fish or forbade it on these premises. . . . You can fish all along the stream. There are no fences. I did not stay at or take any meal at or have any business dealings at the hotel the time I was hurt." *467
The defendant has acquired a right of way seventy-five feet wide through the lands of the hotel company, and the power line in question was on and along this right of way. The grant of the right of way contained the following provision: "The party of the second part agrees not to erect any adjoining fences along its right of way."
The accident occurred during the afternoon of May 12, 1923. The defendant introduced evidence tending to show that shortly before 8 o'clock in the morning of the same day an insulator near the scene of the accident was struck by lightning and broken, thereby causing the wire attached to the insulator to drop to a point within eight and a half feet of the ground, and that the defendant was not negligent in failing to discover the sagging condition of the wire prior to the accident.
[1] The defendant was in the lawful possession of the right of way upon which the accident occurred and, "so far as the question of negligence is concerned, was clothed with the rights of the owner and must be treated as such." (Lindholm v.Northwestern Pac. R. Co.,
Where one "expressly or by implication invites others to come upon his premises, whether for business or for any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger, and to that end he must exercise ordinary care and prudence to render the premises reasonably safe for the visit." (Cooley on Torts, 3d ed., p. 1259.) On page 1265 of the same work it is said: "One is not invited into danger when his entrance upon dangerous premises is simply not opposed and prevented. Thus, one whose unenclosed grounds people cross without objection is not liable to one who falls into an unguarded cistern there." An invitation to use the premises of another is inferred where there is a common interest *468
or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using them." (Bush v. Weed Lumber Co.,
The judgment is affirmed.
Glenn, J., pro tem., and Plummer, J., concurred.
A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on September 12, 1927, and the following opinion then rendered thereon: *472
THE COURT.
The petition for hearing herein is denied.
[2] In denying the same, however, we withhold our approval of that portion of the opinion of the district court of appeal wherein it is decided that the plaintiff herein was a mere licensee of the owner of the premises upon which the accident and the resulting injuries to him occurred, since whether the plaintiff was a licensee or an invitee upon said premises, it was for the jury to determine whether the defendant had failed to exercise the degree of care which the circumstances of the situation required. The jury upon the evidence in the case resolved that question in favor of the defendant. It follows that the judgment upon such verdict was properly affirmed.
Preston, J., being disqualified, did not participate herein.