| Ill. | Apr 23, 1908
delivered the opinion of the court:
Defendant in error maintained an elevator shaft and operated a freight elevator therein for the use of his tenants and employees in receiving and discharging merchandise. The deceased was a police officer directed by his superior to ride on the wagon of the express company for the purpose' of protecting the express company’s horses, its employees, and the wagon and merchandise therein, from striking teamsters. -When the employee of. the express company in charge of this particular wagon backed the wagon up to the doorway opening into the elevator shaft the deceased stepped into the opening, which from the outside seemed dark, fell down the shaft and, received a fatal injury. The wagon and the employees of the express company came there at the request of a tenant to receive goods. The deceased had no connection whatever with the business of the tenant. His sole duty was to act as a guard for and on behalf of the express company, to protect its employees and property and the property of others while in its custody. The tenant had no business to do with the deceased and the deceased did not have occasion to see or communicate with any person within the building. He was not allured, induced or invited by the defendant in error or his tenant to enter the building. It must be inferred from the evidence that he entered the building for one or the other of two purposes: Either (i) as a matter of convenience, for the purpose of getting out of the way of those who were about to place in the wagon packages which the tenant desired to ship; or (2) for the purpose of better protecting the employees of the express company while taking possession of the goods that were to be shipped, and for the purpose of better protecting the goods themselves as soon as they passed into the possession of the express company. If he went into the building for the first purpose he was a mere trespasser, and defendant in error owed him no more duty than would the owner of the building across the alley if the deceased had elected to step into that building to wait while the goods were being loaded. If, on the other hand, he stepped into the building that he might better perform his duties as police officer he was licensed so to do by the law itself, even in the absence of permission given by the owner of the building. (Cooley on Torts, 313; Woodruff v, Bowen, 136 Ind. 431" date_filed="1893-10-20" court="Ind." case_name="Woodruff v. Bowen">136 Ind. 431.) In such case, however, he would, be a mere licensee, to whom defendant in' error would owe no duty except the duty to refrain from inflicting a willful or wanton injury upon him. It was so held by this court in Gibson v. Leonard, 143 Ill. 182" date_filed="1892-10-31" court="Ill." case_name="Gibson v. Leonard">143 Ill. 182, in reference to a member of a fire insurance patrol who entered a building for the purpose of protecting property therein from fire, and who, while using an elevator in the building, was injured by the falling of the counter-weight, which, according to his contention, was not properly secured. The rule announced in that case must be held applicable to the policeman who enters without any express or implied invitation from the owner.
It is unnecessary to consider the question of contributory negligence.
The judgment of the Branch Appellate Court will be affirmed.
Judgment affirmed.