Coberth v. Great Atlantic & Pacific Tea Co.

36 App. D.C. 569 | D.C. Cir. | 1911

Mr. Justice Robb

delivered the opinion of the Court:

Plaintiff’s right of action necessarily grows out of the implied invitation of the defendant to her to enter and to walk about its store, and the corresponding duty which devolved upon the defendant to see that its store was a reasonably safe place. It follows, therefore, that the real question in this case is whether what was said to the plaintiff upon the occasion in question amounted to a withdrawal of the invitation to enter that part of the store where the prizes were kept. Under the evidence it is apparent that customers, on every day the store was open except Saturday, had the right to expect that both the main and back part of the store would be kept in a reasonably safe condition; but if the defendant expressly withdrew its implied invitation to the plaintiff to visit that part of the store where prizes were kept, the plaintiff, to the extent of her disregard of such notice, became a mere licensee, and unless the defendant was guilty of active or wilful negligence, which in view of the finding of the jury cannot be here asserted, it is not responsible for the ensuing injury.

The plaintiff insists that the jury should have been permitted to find not only whether she was notified not to go back where the trapdoor was located, but also whether the plaintiff, in view of the nature or character of such notice, exercised that degree of care and caution demanded of her; in other words, that, notwithstanding the jury should find that the defendant expressly withdraw its implied invitation to the plaintiff to enter the rear of its store, where this danger existed, and notwithstanding that she, without the knowledge of the defendant, disregarded such express notice of withdrawal, and placed herself in a position of peril, the jury should be permitted to speculate whether the defendant ought not to have gone further and assigned a definite reason for its action. We are unable to assent to this doctrine.

In Pierce v. Whitcomb, 48 Vt. 127, 21 Am. Rep. 120, the parties were farmers. Plaintiff went to the defendant’s late in the evening to buy a few bushels of oats. While the defendant had no oats to sell, he finally consented to accommodate the plaintiff. Thereupon the parties repaired to the defendant’s granary, which was always kept locked, and went to the upper floor, where the oats were. While the defendant stepped back to get a measure, plaintiff walked about the floor in the dark, fell through a hole therein, and was injured. It was held that the defendant was not liable for the injury, the court saying: “The plaintiff was permitted there [in the granary] for. one simple, specific matter of business, — to take 6 bushels of oats; the oats were shown him; to.facilitate the delivery, the defendant went for his measure; he left the plaintiff at the oats, where he should be in the dark, but in a safe place. The oats could be delivered at no other place, and no other matter of business was permitted to him there. If, 'for curiosity or other motive, he chose to occupy that moment in the darkness in wandering about the granary, * * * he was doing what he was not invited or permitted to do, and what was no part of the business in hand; and we think this departure was of his motion and at his risk.”

In Ferguson & P. Co. v. Ferguson, — Ky. —, 114 S. W. 297, it was held that a sawmill company operating a wood conveyer from its mill to the wood yard is not liable to a purchaser of wood for injuries received by the fall of a stick of wood from the conveyer while such purchaser was loading his wagon at a place and in a manner not intended for such loading. The court said: “When the defendant invited the plaintiff to haul its wood, it only invited him*to use that part of its yard that was provided for that purpose; and if he did not úse the premises intended for his use, and put himself in a dangerous position, standing where he was not intended to stand, he took the risk, and cannot recover.”

In Ryerson v. Bathgate, 67 N. J. L. 337, 57 L.R.A. 307, 51 Atl. 708, plaintiff was the possessor of a cat of which she desired to be rid. Thereupon, the plaintiff arranged to give the cat to the defendants, who ran a meat shop. Plaintiff’s first attempt to deliver the eat was unsuccessful, owing to its escape upon plaintiff’s arrival at defendants’ shop. Plaintiff made another attempt, and upon arriving at defendants’ shop told them to put the cat in a closet, or it would run away. Thereupon, she was told “put her in there.”. Plaintiff supposed “in there” to be a closet, stepped inside without looking, and fell downstairs. The court held that it was incumbent upon the plaintiff not only to show “that her entry upon the premises was by invitation of the owner, but also that at the time the injury was received, she was in that part of the premises into which she was invited to enter, and was using them in the manner authorized by the invitation, whether express or implied. Her right of recovery was denied. See also Glaser v. Rothschild, (1909), 221 Mo. 180, 22 L.R.A. (N.S.) 1045, 120 S. W. 1, 17 A. & E. Ann. Cas. 576.

The general rule to be deduced from these and other cases is that responsibility in a given case extends no further than the invitation; in other words, that the owner’s liability for the condition of his premises in coextensive with his invitation. The court in effect so charged the jury in the present case, and whether the language employed by the defendant’s servants amounted to no more than a request that the plaintiff refrain from entering a well-defined part of the store is immaterial. Such a request, if clearly expressed, was quite as effective as a command to withdraw the implied invitation theretofore existiug.

While there was evidence from which the jury could have found knowledge on the part of the defendant of the plaintiff’s presence in the place of danger prior to the accident, the court’s charge did not take that question from the jury. The learned trial justice merely said to the jury that he recalled no evidence to that effect. He expressly told them that they were entitled to pass upon the evidence themselves. Owing to the weight given to the jury to any expression of opinion by the trial judge, the interests of justice require that he should “be careful to avoid any remarks which might tend to convey the impression to the jury that he has an opinion with respect to the proof of any disputed fact that has been submitted to them for decision.” Washington Gaslight Co. v. Poore, 3 App. D. C. 139.

The court in the present case correctly laid down the law, and told the jury that they were free to consider the evidence for themselves. In the Federal courts this is sufficient. “Argumentative matter * * * should not be thrown into the scales by the judicial officer who holds them,” and “as the jurors are triers of facts, expressions of opinion by the court should be so guarded as to leave the jury free in the exercise of their own judgments.” Starr v. United States, 153 U. S. 614, 38 L. ed. 841, 14 Sup. Ct. Rep. 919. It is clear that be trial court in the present ease did no more than give expression to his recollection of the testimony concerning one phase of the case, leaving the ultimate decision of the question of fact where it belonged.

Judgment affirmed, with costs. Affirmed.