Burden v. Illinois Cent. R. R.

129 Ky. 764 | Ky. Ct. App. | 1908

Opinion op the Court by

Wm. Rogers Clay, Commissioner —

Affirming.

Appellant, Harrison Burden, instituted this action .against appellee, Illinois Central Railroad Company, to recover damages for personal injuries. At the •conclusion of plaintiff’s testimony the trial court •gave a peremptory instruction in favor of appellee. Of this ruling of the court, Harrison Burden complains.

It appears that in the town of Horse Branch one Walker Myrtle, a druggist, had built a plank walk-, way from the grade of the Illinois Central’s main line to his storehouse, a distance of about 40 feet. This walkway had been used by Myrtle’s customers for a great many years. Two feet from the end of the walkway, and about 6 inches above it, the appellee had stretched a signal wire, which was a necessary .appendage of the railroad at that place. On the 13th ■day of December, 1906, appellant, who lived on the opposite side of the railroad’s right of way, crossed its track and proceeded to the drug store to get medicine for a sick child. As he returned with the medicine his foot caught in the signal wire, causing him to fall and thereby injure his hand. Appellant testified that he lived near Horse Branch about 26 years. On the occasion in question he had a sick hoy and went to Myrtle’s drug store to get some medicine for him. After procuring the medicine he started hack, and in some manner got tangled up in the wire and injured his hand. The wire was drawn tight, was about 6 inches above the platform, some 2feet above the ground, and about 2 feet from the end of the platform. Large numbers of people went across the track at that point and traveled the platform to and from the drug store.

After testifying to the above facts, appellant testified as follows: “Q. How long has that wire been placed across the edge of the platform? A. Why, I think it has been there something near a year; a. little over a year. Q. How long had it been there-before the injury happened? A. I don’t know exactly how long it had been there; had not been there a great while, though. Q:. You knew that it was. there before the-injury happened? A. Yes, sir. Q. You had seen it time and again? A. Yes, sir. Q. You had seen it when you went into the store to get the medicine on the occasion of your injury? A. Yes, sir. Q. You knew it was there on the occasion of your coming out of the store? A. Yes, sir. Q.' You knew it was there all the time? A. Yes, sir. Q. Whether you saw it or not, when you stumped, your toe on it and fell, you knew it was there? A. Yes, sir. By the Court: Mr. Burden, do I understand you to say tha.t you had seen this wire there before this day? A. Yes, sir. Q. And you knew it was across there? A. Yes, sir; I knew it was across there. Q. And knew who put it there? A. Yes, sir.”' Again, on cross-examination, he was asked: “Q. You just forgot about the wire being there and started across — that is all there is to it? A. T didn’t see it. Q. You remembered it was there, but didn’t see it? A. Yes, sir; I knew it was there.”

There are authorities holding'-that, while the owner of private property is not obliged to make it safe for trespassers, or even for mere licensees, yet, if the circumstances have 'been such as to amount to a devotion of the property temporarily to the public use, eare must be taken not to -make it unsafe until proper notice of the change has been given. Note to Lepnick v. Gaddis, 26 L. R. A. 686. So, too, it is said to be a sound and just conclusion that an owner or occupier of land, who has given to the public, or to a particular person or corporation, a license to come upon or to cross his premises, or to establish a private way, or ■even a railway, thereon, must, before exercising his power to revoke such license, anticipate that danger may accrue therefrom to those who have been accustomed to use the license, and is, therefore, bound to notify them of such revocation, and to warn them of any fence, obstruction, or other dangerous means to which he may have resorted to exclude them from his premises. So, if the public have been accustomed to drive, .though without right, across the land of a proprietor, who, in order to stop them from doing so, stretched across the traveled way, without any warning to the public, a barb-wire fence which is invisible after dark, and, not knowing the existence of the obstruction, a traveler drives upon it, injuring his horse, he will have an action for damages against the landowner. Thompson on Negligence, vol. 1, section 1016. We have not been able to find any authority holding that, where a landowner puts an obstruction on a right of way across his premises, he is liable in damages for the injury to the licensee who had actual notice of the obstruction.

The evidence in this case shows that the signal wire, the obstruction complained of, had been across the platform for about a year, and that appellant knew it was there. He not only knew it was there, but saw it on the occasion that he went into the drug store to get the medicine. He was not, therefore, entitled to notice of a fact which he well knew. In such cases there is no liability for injuries to persons who have actual knowledge of the obstruction. We therefore conclude that the trial court properly instructed the jury to find for appellee.

Judgment affirmed.