131 Iowa 622 | Iowa | 1906
The facts which the evidence tended to establish, so far as material for the determination of the errors relied upon, are as follows: The scene of the accident was an uninclosed and unimproved tract of rough land, covered with trees, brush, and weeds, belonging to one Hubinger,. constituting a portion of the premises occupied by him as a residence, and extending from a fence or wall, which constituted the boundary between the improved and the unimproved portions of his tract, to the river. Over this portion of Iíubingér’s property, the defendant was maintaining its electric light and power wires, supported on poles, the wires being in general insulated. Deceased, a boy of fourteen years of age, with two companions a few years older, went upon this uninclosed and unimproved portion of Hubinger’s premises to get some zinc which had been ■thrown away, in order that they might sell it for junk. De
The evidence tended to show that the portion of Hubinger’s premises on which the accident occurred was so far generally used by the public that the defendant was bound to anticipate danger to some one from allowing its wire without proper insulation to sag so that persons thus using the premises were in danger of coming in contact with it and receiving injury, and the court instructed the jury that, if it was found from a preponderance of the evidence that the place where the injury occurred was so resorted to by persons generally, of which fact defendant’s servants had knowledge or should have had knowledge under the circumstances, then it was the duty of defendant through its servants to exercise ordinary care and diligence to prevent such danger, and the
' Int. 8. Did William Connell have the consent of the owner or occupant of the land where the alleged injury occurred, to go upon said land at said time? A. No. Int. 9. Was William Connell at the time and place of said accident on premises where he had a right to be ? A. No. . . . Int. 11. Did J. C. Hubinger prior to, and including the time of, the accident forbid persons from entering upon the land where the alleged injury occurred? A. Yes. . . . Int. 14. Was the place where the alleged injury occurred public or private at said time ? A. Private. Int. 15. Was William Connell invited to go upon said land at the place where said injury occurred at the time of same? A. No.
In determning the legal effect of these findings, it is proper to take into consideration the instructions in which the jury were told, after being properly instructed with reference to defendant’s negligence as already indicated, that a trespasser is one who enters upon the land of another without the consent, either express or implied, of the owner or occupier thereof, but persons entering such land with the implied consent of the owner or occupier would not be regarded as trespassers; that if the public generally went upon the premises in question without objection on the part of the owner, and this was generally known, then persons enter' ing upon such premises could not be regarded as trespassers or wrongdoers, by merely so entering; that, if it should be found that Hubinger forbade people entering upon his
It is to be noticed that there is no direct finding as to whether or not deceased was a trespasser under these instructions, and perhaps the finding that deceased did not have the consent' of the owner or occupant to go upon the land, that Hubinger had forbidden persons from going there, and that the premises were private, would not conclusively show that deceased was a trespasser, for there is no'specific finding'as to implied consent. Under the evidence the jury might have found that, while Hubinger in some instances forbade people coming upon the premises, the practice of crossing without express permission but without. specific objection was so general that deceased might have been justified in assuming an implied consent. But the court further instructed the jury as follows:
A license to go upon the land of another may be by an invitation either express or implied, or one may be licensed simply by the permission or consent of the owner of land to pass over same. A licensee by express invitation is one who is- directly invited by the owner of the land to enter upon it, and such person is rightfully, upon such land. A licensee by implied invitation is one who has been invited to enter upon- the' land either by the owner or occupier of the same by some affirmative act done by such owner or occupant, or by appearances which justify persons generally in believing that such owner or occupant had given his consent to the public generally to enter upon or to cross over his premises, and while such licensee is acting within the scope and limit of such implied invitation he has the lawful right to be where he is so invited. A bare licensee is one who enters upon the land of another simply without objection of the owner, or by sufferance of the owner or occupier, whether such land be inclosed or uninclosed. Such bare licensee enters the land at his own risk, and if, while on said
We find no error in the refusal of the trial court to sustain the motion for judgment for defendant notwithstanding the verdict in favor of plaintiff, and the judgment on the general verdict is therefore a'ffirmed.