94 P. 368 | Cal. Ct. App. | 1908
The action was instituted to recover damages for personal injuries. The plaintiff prevailed and from the judgment and order denying the motion for a new trial defendant appealed.
It appears from the complaint that defendant constructed and maintained in the city of Woodland a certain guy wire or cable, at or near the point where Lincoln avenue intersects the western boundary of the depot grounds of the Southern Pacific Company; that along the western boundary of said depot grounds is a spur or switch track, and Lincoln avenue crosses this at right angles extending easterly across said grounds; that said grounds are open and uninclosed; that prior to the accident defendant erected a telephone pole at or near the south side of said Lincoln avenue at the point of its intersection with the western boundary of the said depot grounds, upon which pole it strung its wires, and for the purpose of "staying" the aforesaid pole erected a second pole about eighty-three feet distant in a northeasterly direction, both of said poles being within the exterior limits of said Lincoln avenue; that the said guy wire, being about three-eighths of an inch in diameter, extended from a point near the top of the first-mentioned pole to the top of the second and thence in a general northeasterly direction to the ground at a point about twenty-five feet from the foot of the said second pole and on the grounds of the said Southern Pacific Company where said guy wire was attached to some object unknown to plaintiff entirely under the surface of the earth. At the time of the erection of said poles and guy wire, and for more than five years prior thereto and at the time of the accident, *270 there was "an open, well-traveled roadway leading in a northeasterly direction from the said intersection of Lincoln avenue with the spur or switch track aforesaid, across the said depot grounds to the depot buildings of said Southern Pacific Company; that said guy wire was not attached to any post or other visible obstruction at the point where it entered the ground, which point was within the limits of said traveled roadway." As the plaintiff, on his way to the depot to meet his wife coming in on the train, was driving a horse attached to a two-wheeled cart along said roadway, and not knowing of the erection or location of said guy wire, and being unable to see the same, he collided therewith and was thereby thrown with great force to the ground and seriously injured.
It is assumed by both parties throughout the argument that the measure of defendant's duty and liability in the premises is the same as would be that of the Southern Pacific Company if the latter had directly erected and maintained said poles. and guy wires instead of authorizing defendant to do so, and we shall consider the case upon this assumption. But it is insisted by appellant that defendant cannot be held responsible for the injury for the following reasons: "1. There was no contractual relation between plaintiff and defendant; 2. The defendant owed the plaintiff no duty whatever; 3. The defendant did not violate any duty it owed plaintiff; and 4. The plaintiff was guilty of contributory negligence."
It is obvious, however, that the first proposition is inconsequential, as there is no contention of any contractual relation between the parties, and the second ground is involved in the third. The position of appellant, therefore, upon which main reliance is placed, may be considered as affirmed in the said third and fourth propositions.
In the consideration of the question whether defendant violated any duty it owed to plaintiff, in other words, whether it was properly chargeable with negligence as contemplated by the law and the decisions of the courts, appellant seems to have ignored the rule of practice, well established, that we must consider the case in the light of the inferences most favorable to plaintiff's contention for which there is any substantial support in the evidence.
Appellant makes a very common mistake in assuming that its theory of the facts must be accepted as the basis for the *271 judgment of this court, notwithstanding there is a decided conflict in the evidence as to some important questions, and it is clear that our conclusion must be vitally affected by the consideration whether we accept as true the testimony supporting plaintiff's theory or that in favor of the theory advanced. by defendant.
For the purpose of this decision the following must be accepted as facts established by the evidence: The whole space between the spur track and a certain tree mentioned in the evidence is covered by a clearly defined and regularly traveled roadway; that within this space is located the said guy wire with which plaintiff collided; that this roadway has been used openly and continuously by a large number of people — in fact, by everyone who had occasion to use it, for fifteen or twenty years. It was the common route of travel for persons going from the southern part of the city of Woodland to the depot. Plaintiff had used it for twenty years and it was his habit to go that way to the depot. On the evening of the accident. after dark he was driving as usual, intending to go to the depot to meet his wife, when the wheel of the cart was caught by the guy wire and plaintiff was thrown out. Plaintiff was watching where he was going; he was driving with his usual, care and he was a very careful driver; he had never seen the guy wire and he did not know it was there; he supposed the road was in the same condition as that in which it had been for many years, except that he saw the pole to which the wire was attached, but he could not see the wire itself, and he was. driving on the particular part of the road near the tree to which he had been accustomed for many years on account of it being higher ground than that farther west.
Under these circumstances, must it be said as a matter of law that defendant violated no duty it owed to plaintiff, or, in other words, was not, in legal contemplation, guilty of negligence?
Appellant makes a distinction — which is recognized by the authorities — between the case of one invited over a way where an accident occurs and that of a mere licensee. In the former case a higher degree of care is required and a stricter rule of responsibility is applied in favor of the one injured than in the latter instance.
Again, in many of the decisions great importance is attached to the question whether the party injured is or is not *272 in pursuit of some business with the party of whose negligence complaint is made.
In the case at bar plaintiff is entitled to whatever favor may be shown to a party so engaged on account of his business at the depot and defendant's relation to the said Southern Pacific Company.
Considering the manner in which said roadway had been used for so many years without objection and without ever having been obstructed until the said guy wire was placed as aforesaid, the more reasonable view is that plaintiff was there not as a mere licensee, but in consonance with an implied invitation of the Southern Pacific Railroad Company. But whether one position or the other be correct in the light of the evidence most favorable to plaintiff, it cannot be held, we think, that there is no support for the conclusion that under the circumstances defendant was negligent in placing and maintaining the guy wire within the line of travel without anything to attract the attention or observation of one approaching in the dark and when such an accident as in the case at bar was likely to occur.
It is no answer to say that defendant owed no duty to plaintiff.
The general principle is applicable that one must use his property so as not to injure another. He must at least practice ordinary care in the use of his property and not be reckless or indifferent to human life or safety.
It is clear that the case would be entirely different if the guy wire had been placed within an inclosure or outside of the line of travel. The ordinarily prudent and cautious person of average intelligence, seemingly, would anticipate such an accident, and moved by just solicitude for the welfare of others which the law enjoins would have located the wire differently or, as was afterward done, have placed a piece of timber near the wire so as to attract attention and lead to the discovery of the obstruction.
The case would be no different in principle if defendant had stretched a barbed wire or dug a ditch across a part of the traveled way, although the danger of accident might have been somewhat increased.
It is true that the wire had been maintained for some eighteen months before plaintiff was injured, and consequently during that time there had been no travel over this particular *273 part of the road, but this is of no importance, as far as plaintiff is concerned, if he had no knowledge of the change nor of any circumstance to put him upon inquiry. Giving full credit, as we must, to the testimony of plaintiff, the case is just the same as though the accident had occurred the day after the wire had been located.
Again, we think it is equally clear that the court was justified in finding that there was no contributory negligence on the part of plaintiff. He acted as any ordinarily prudent man would be expected to act under the circumstances, seeing what he saw and knowing what he knew. He observed the pole and avoided it. The presence of the pole, however, would carry no intimation that a guy wire was attached to it. The general knowledge and observation of the average man would not lead him, from the fact of proximity to a telephone pole, to suspect the imminence of danger of contact with a wire anchored to the ground. It would certainly be unreasonable to expect him to make diligent investigation to ascertain whether there was any invisible obstruction which he had no reason to believe existed.
Among a large number of cases we cite a few to illustrate the view taken of similar questions by different courts of last resort.
In Sweeny v. Old Colony etc. R. R. Co., 10 Allen (Mass.), 368, [87 Am. Dec. 644], the supreme court of Massachusetts said: "The general rule or principle applicable to this class of cases is, that an owner or occupant is bound to keep his premises in a safe and suitable condition for those who come upon and pass over them, using due care, if he has held out any invitation, allurement or inducement, either express or implied, by which they have been led to enter thereon. . . . The gist of the liability consists in the fact that the person injured did not act merely for his own convenience and pleasure, but from motives to which no act or sign of the owner or occupant contributed, but that he entered the premises because he was led to believe that they were intended to be used by visitors or passengers, and such use was not only acquiesced in by the owner or person in possession and control of the premises, but that it was in accordance with the intention and design with which the way or place was adapted and prepared or allowed to be so used." *274
In Carskaddon v. Mills,
In Morrow v. Sweeny,
In Izlar v. Manchester A. R. Co.,
To the same effect is the decision of the supreme court of Michigan in the case of McKone v. Michigan Cent. B. Co.,
In Phillips v. Library Co. of Burlington,
In Beck v. Carter,
In Lundeen v. Livingston Electric Light Co.,
In Graves v. Thomas,
In Brown v. Stevens,
In Texas P. Tel. Co. v. Prince, 36 Tex. Civ. App. 462, [
In Brush Electric Lighting Co. v. Kelley,
In Brusso v. City of Buffalo,
Appellant cites a large number of cases which, it is claimed, are opposed to the views herein expressed, but an examination of them shows that they are easily distinguishable in their facts from the case at bar. We refer specifically only to those decided by our own supreme court.
In Peters v. Bowman,
This is in harmony with the generally recognized doctrine that with certain exceptions, to which the Peters case does not belong, the owner of property owes no duty to trespassers except to abstain from wanton injury.
There was no evidence of negligence of defendant in the case of George v. Los Angeles Ry. Co.,
Loftus v. De Hail,
In Douglas v. Southern Pacific Co.,
He voluntarily assumed the risk, whereas a vital point in the case at bar is that plaintiff believed and had reason to believe that the way was safe, and it was rendered unsafe by reason of an invisible obstruction placed there by defendant.
It is said in the Douglas case, supra: "To undertake to pass through the planing-mill when it was in full movement — its planers, saws and other machinery in operation; trucks, push carts, tables, benches, lumber and materials occupying practically the entire mill, with no distinct passageway through it, and such ways as there were so blocked that one would have to pick a devious or uncertain route over or around permanent and temporary obstructions — was so obviously attended with risk and danger as not to be open to discussion on that point."
The case would be in point here if plaintiff had known that *278 the way he was traveling was dangerous on account of the guy wire.
Some other points are made by appellant which do not demand, as we view them, extended notice.
The demurrer to the amended complaint was properly over-ruled; no prejudicial error was committed by the court in its rulings upon questions of evidence; the findings cover all the material issues; and whether an action might have been maintained or not against the Southern Pacific Company or against it and the defendant jointly we are satisfied that there is sufficient evidence to uphold the judgment against appellant. (Barrett v. Third Ave. Ry. Co.,
The judgment and order are affirmed.
Chipman, P. J., and Hart, J., concurred.