114 Wis. 279 | Wis. | 1902
1. It is contended that the deceased was,, at the time and place of the injury, at most a mere licensee, to whom the defendant owed no duty. It is true that the defendant had in its employ at the time one John Dardell,
Upon such findings and testimony, can we hold that the deceased was a mere licensee within the authorities ? Townley v. C., M. & St. P. R. Co. 53 Wis. 626, 11 N. W. 55; Cahill v. Layton, 57 Wis. 606, 617, 16 N. W. 1; Truax v. C., St. P., M. & O. R. Co. 83 Wis. 547, 53 N. W. 842; Johnson v. Lake Superior T. & T. Co. 86 Wis. 64, 56 N. W. 161;
“If a person enters upon premises on business to be transacted with the owner or occupant thereof, or by the procurement of the owner or occupant, and, being himself in the exercise of due care, is injured by reason of the unsafe condition of the premises or the approaches thereto, such unsafe condition being known, or such as ought to have been known, to the owner or occupant, the latter will be answerable in damages for such injuries.” Buswell, Pers. Inj. § 66, citing numerous cases.
Among the cases cited in support of the proposition are the following: Donaldson v. Wilson, 60 Mich. 86, 26 N. W. 842; Samuelson v. Cleveland I. M. Co. 49 Mich. 164, 13 N. W. 499; Carleton v. Franconia I. & S. Co. 99 Mass. 216; Bennett v. Railroad Co. 102 U. S. 577, 584, 585. In the first of these cases it was held that “a landowner is liable to respond in damages to one who, using due care, comes upon his premises at his invitation or inducement, express or implied, on any business to be transacted with or permitted by him, for injuries sustained by reason of the unsafe condition of such premises, known to him, and which he has suffered negligently to exist, but of which the injured party has no knowledge or notice.” In the last it is said, quoting from an author, that “the principle appears to be that invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using it.” Similar views are expressed in Mr. Thompson’s late Commentaries on the Law of FTegligence (vol. 1, § 968), citing numerous cases in support of the rule. We must hold that, under the findings of the jury, the deceased cannot be regarded as a mere licensee, but that he was there on business for the mutual benefit
2. By the third and fourth findings the jury found, in effect, that the defendant did not know of the defective condition of the hoops prior to the accident, hut that it ought to have known of such defect prior to the accident. It is claimed that the evidence is insufficient to support this last finding. It appears that the tank was constructed in 3 894; that the average life of such a tank used as that was without necessitating repairs was ten years or more; and that that tank was inspected and found in good condition in June or July prior to the accident. Of course, if the defect was latent and unknown to the defendant, and undiscoverable by the exercise of ordinary care on the part of the defendant, then there would be no liability. Smith v. C., M. & St. P. R. Co. 42 Wis. 520; Morrison v. Phillips & C. C. Co. 44 Wis. 405; Spille v. Wis. B. & I. Co. 105 Wis. 340, 81 N. W. 391. But if the photographs were properly admissible in evidence, then there was evidence tending to prove that some of the hoops on the tank were, at the time of the injury, rusted to such an extent as to destroy or partially destroy the efficiency of such hoops, and that such condition could readily have been discovered by the exercise of ordinary care on the part of the defendant.
3. The defendant’s secretary testified to the effect that the photographs correctly represented the location of the tank, the office building, the roadway, and the plant. The photographer testified to the effect that Exhibit O was a correct representation of the hoops as they were September 18, 1899, — five days after the accident; that they were rusty, with some slops or grain on them; that he took Exhibits D and E on the same day; that they represent the hoops that came from the vat that burst, and were in the yard where he took photographs of the whole lot; that they represent parts of
Other questions suggested do not seem to be of sufficient importance to call for special consideration.
By the Court. — The judgment of the superior court of Milwaukee county is reversed, and the cause is remanded for a new trial.
The relation between the deceased and defendant was more than, that of a mere licensee. The defendant owed him the duty of active vigilance to the extent of using ordinary care in discovering and informing him of dangers. The jury found that the defendant did not know of the defective condition of the hoops on the vat, but that in the exercise of ordinary care it ought to have known of their condition prior to the accident. I think the evidence is overwhelmingly against this last finding. The undisputed evidence is that the vat was built in 1894; that the average life of such structures was ten years; that the materials of which this vat was constructed were first class; that it had been painted with mineral paint at the time it was set up, and at least once since that time; and that it was carefully inspected in June or July prior to the accident, and showed no appearance of rust or defects. Admitting that the photographs were properly admissible in evidence, they were not sufficient, in my judgment, to overcome the force of opposing evidence. To allow a recovery on the evidence in this case is equivalent to making the defendant an insurer.
I agrfee that the judgment should be reversed. This personal opinion is written, in part because it seems that the opinion of the court does not make the grounds for the decision rendered sufficiently plain to prevent misconception on some points, and in part because my views are not in harmony therewith. I understand the court holds that it follows as a matter of law, from the findings of the jury to the effect that the deceased was> engaged in a business transaction with the appellant when injured, at a place on the latter’s premises where he was permitted to be in the pursuit thereof, that he was not a mere licensee; that though he was not, strictly speaking, an invitee as to the particular place he was in, since he was permitted to be there and it pertained to the business in which he and the respondent were interested, his status was at least that of a licensee coupled with a nlutual interest of licensee and licensor, not that of a mere licensee, and that such relation carried with it an implied assurance that the place was free from danger discoverable by the exercise of ordinary care. In other words, that the license, being coupled with a business relation, so far as legal rights were concerned, was equivalent to an invitation. There is abundance of authority to support that view, but I do not understand that it includes the cases cited by the court. They are, in the main at least, cases of liability to a mere licensee. To point only to such authorities to support the decision here, it seems, is very misleading, — so much so as to almost certainly lead to error by trial courts. In them the element of business relation, generally, distinguishing a mere licensee from a licensee or invitee, was absent, and the liability was sustained upon the ground that one cannot justly set a trap even for a mere licensee, or conduct his business regardless of the license granted; — upon the doctrine that if a railroad company permits, merely by not objecting, persons to habitually walk upon its tracks where there is no highway, and to do so to such an extent as to render it probable that pedes-
There is a broad difference between a trespasser and a mere licensee; also between a licensee and a mere licensee, as the terms are used in the authorities. A trespasser is a wrongdoer, — one who acts in defiance of or regardless of the rights of another. Let that other give permission to do the act, he having no interest therein himself, directly or indirectly, and the trespasser becomes a mere licensee. Add the element of mutual interest or business relation of some kind, with or without advantage to the owner of the property, and the mere license becomes a license or invitation with a suggestion or assurance of safety, according to circumstances. To illustrate : A railroad company prepares a walk for its passengers to use in approaching to or departing from its trains. Such use is said to be by invitation. The preparation of the path is a suggestion to patrons of the road to approach and depart from trains by that particular way, and an assurance that it is reasonably safe to do so. Persons using a different way to approach or depart from trains customarily, with the knowledge of the company and without its protest, do so without any element of invitation, strictly speaking. There is rather an invitation not to use it, plainly suggested by the specially prepared way. The permissive use of the unprepared way, by itself, constitutes but a bare license, as the term is commonly used. The added element of business relation between licensee and licensor increases the degree of duty on the part of the licensor from that due to a trespasser or mere licensee to that due to an invitee, though there is no
Johnson v. Lake Superior T. & T. Co. 86 Wis. 64, 56 N. W. 161, turned on the duty of a railway company to a person walking upon its track, where pedestrians were accustomed to travel by permission of the company and might, under the circumstances, be reasonably expected to be at any time. It was said that he was not a mere trespasser, but it was not intimated that he could be regarded as occupying, in any sense, defendant’s premises by invitation. In Cahill v. Layton, 57 Wis. 600, 16 N. W. 1, another case cited to support the ruling here, the deceased was a licensee without the element of business relation with the licensor, in every sense a mere licensee, and it was held that bare permission by one person to another to use his premises for any purpose does not carry with it a duty to maintain the premises in a reasonably safe condition for the permitted use. The court there drew a distinction between mere omission to inform a bare licensee of danger in his way, and acts on the part of a li-censor rendering enjoyment of the license dangerous, there being breach of duty in the former, but not in the latter. The idea is that expressed in authorities quite generally, that one cannot be actively negligent toward a mere licensee. It is said that much confusion exists in American cases, partly by failure to distinguish between mere passive and active conduct in respect to a mere licensee; that while such a licensee
From what has been said it will be seen that appellant’s contention that tbe verdict of tbe jury and tbe evidence do not show that it was under any duty of active vigilance to •discover those things that were discoverable by tbe exercise •of ordinary care to that end, and to have informed deceased thereof, because be was only a licensee — was not in tbe place •of danger by invitation, — is not satisfactorily answered by pointing to tbe cases bolding that a licensor owes a duty to bis mere licensee not to render tbe enjoyment of bis license dangerous by active negligence, as by running a railway train re.gardless of tbe probability of tbe presence of persons on the track where it has been customarily used as a traveled way. No active negligence is claimed in this case. Breach of a •duty to be actively vigilant to discover dangers that were discoverable by tbe exercise of ordinary care, and to inform .the licensee thereof, is claimed. If tbe sole test of liability were whether deceased was in tbe place of danger by invitation, strictly speaking, either express or implied, tbe result would necessarily be in favor of tbe defendant. There is nothing in tbe evidence to suggest such invitation, but there is ample evidence to show permission. Tbe test of whether tbe verdict, on its face, shows breach of duty to be actively vigilant is whether tbe status of tbe deceased in respect to .appellant was other than a trespasser or bare, or mere, li■censee. If be was neither because of tbe relations between tbe two, it is immaterial whether be was in the place of danger by permission or by invitation, strictly so called. Counsel for appellant brought this appeal on tbe theory that if the -deceased was not in such place by implied suggestion, be
If it were necessary much authority could be produced to support the foregoing proposition. I will refer to them but briefly. One of the most satisfactory decisions in the books, as regards the particular circumstances of the case before us, is Holmes v. N. E. R. Co. (1869) L. R. 4 Exch. 254. The plaintiff there was injured while unloading coal at the defendant’s track, the coal having been shipped over its. line. There was a usual and provided way for conducting the unloading operations. Plaintiff, being unwilling to wait for his turn to be accommodated in such way, which was to first shunt the coal from the car into* a cell by the side of the track and then draw therefrom, informed the station master that he would take some coal for immediate use directly from the car. That required him to mount the car. lie was permitted to do so by mere silence of the master with knowledge of the operation. After removing the coal plaintiff descended from the car to a flagged way along which patrons were accustomed to walk in voluntarily assisting in the unloading operations in the usual way. In doing so he stepped upon a loose flag, of which the defendant knew or ought to have known, and was injured. The defendant claimed that the plaintiff was a mere licensee and could not, therefore, legally charge the former with actionable negligence, since it did not wilfully or wantonly injure him. In defining the plaintiff’s status, Cháñetele, B., said:
“Where a person is a mere licensee he has no cause of action on account of dangers existing in the place he is per*293 mitted to enter. In one sense tbe plaintiff was a licensee, but lie was not a mere licensee, and tbe word 'mere’ bas a very qualifying operation; . . . and tbis prevents tbe case from being that of one wbo is 'a mere licensee.”
Clbasbt, R., said, in effect, that tbe mere fact that tbe ordinary way of unloading the coal was departed from was not material to tbe defendant’s duty to tbe plaintiff, since tbe way cbosen by tbe latter was known and assented to by tbe former; and further: "Tbe question of a mere license does not arise; for as soon as you introduce tbe element of business, wbicb bas its exigencies and its necessities, all. idea of mere voluntariness vanishes.” Keluy, O. B., speaking for tbe court in chief, said, in substance, that since tbe conduct of tbe plaintiff was in pursuit of business relations with tbe defendant, tbe permission, by not objecting, for tbe former to depart from tbe usual way of unloading tbe coal, made the latter responsible for tbe safety of tbe way cbosen, to tbe same extent as that of tbe usual way. In Bennett v. Railroad Co. 102 U. S. 577, tbe distinction is clearly recognized between a mere licensee and an invitee in the technical sense, or one in the broad sense of including all persons entering upon the premises of another in the transaction of business with him by some other than tbe ordinary and suggested way, but one permitted and ordinarily used. It is held that in each of tbe latter situations there is an implied assurance of safety as regards all dangers known to tbe proprietor or discoverable by the exercise of ordinary care. Elliott, Railroads, §§ 1248, 1249, points out tire same distinctions; and that while invitation implies license, license does not necessarily imply invitation; that mere sufferance does not constitute license, nor license invitation. Where there is mere permission by tbe occupier of property to another to come upon it, there being no mutuality of interest in tbe subject to wbicb tbe latter’s visit relates, the visitor is a mere licensee. Add tbe omitted element, and be is a licensee and an invitee. Pursuing tbe author’s line of reasoning, wre should say: Add tbe further
From what has been said it will be seen that the deceased, according to the verdict, was not a mere licensee, nor was he engaged in manipulating the contents of the tank when the accident occurred by implied suggestion essential to invitation in the general sense of the term; but he was so engaged by.the assent of the defendant essential to license, and was lured into the place of danger by reason of his business with appellant. That carried with it legal responsibility for the safety of such place as regards dangers known or discoverable by the exercise of ordinary care. There was the same implied assurance of safety ap there would have been if it had been part of the regular duties expected of customers to aid in delivering the subject of the deal between the parties, to do as the deceased was doing when the accident occurred. In this respect the case is precisely like the English case from which we have quoted at considerable length.
In reaching the conclusion as to whether the photographs were properly admitted in evidence, two propositions were considered: first, whether the objects represented in the photographs were sufficiently identified as being the remnants of the hoops which came from the vat, to render the pictures competent evidence; second, whether the purpose of the admission of the photographs was legitimate, such purpose being to prove the substantive fact of the defective condition of the hoops, no other evidence being offered on the subject by respondent. As I understand the result, the court decided the first proposition in favor of appellant, and the second in favor of respondent, holding that the ruling of the court below ad
I will first treat the last subject above mentioned. In the Baxter and SeTleck Oases the photographs were used to aid the jury in better understanding evidence given from the mouths of witnesses as to the condition of the things pictorially represented. In the Mauch Oase the photograph, an X-ray picture, was used to show the condition of the object represented therein, there being no other way by which definite evidence in regard thereto could be produced. In other words, it was held to be the best evidence the nature of the ease was susceptible of. Here the situation is very different. The condition of the hoops was a subject of easy proof in the usual way. All the cases cited and all authority on the subject are to the effect that photographs are not admissible in evidence for all purposes. As a rule they are to be used to aid the jury in understanding and coming to a proper conclusion upon other evidence. No court, so far as I know, has
In Baxter v. C. & N. W. R. Co. the court said there are limits upon the use of photographs as evidence, and there must be in each case some substantial, legitimate reason for a resort to such means of presenting facts to the jury instead of relying upon the usual methods. It was further there said, in harmony with standard text writers and many cases cited, that photographs may be used, “to identify persons, places and things, to exhibit particular locations or objects where it is important that the jury' should have a clear idea of the same, and the photographs will better show the situation than the testimony of witnesses, and where the testimony of witnesses will be better understood by the use of photographs, and to detect forgeries, and to prove documents in cases where originals cannot be readily produced.” Obviously, none of those purposes fits this case. The photographs were not used to aid the jury in understanding the evidence of witnesses, or to show, better than could have been shown by the evidence of witnesses, the condition of the hoops. Such condition could have been gone into in detail by the examination of witnesses upon the stand and the exercise of the right of cross-examination, so as to elucidate the truth in a much more satisfactory way than by merely putting the pictures in evidence. Certainly, unless we are prepared to remove all limitations upon the use of photographs, the limit was passed in this case, even conceding, for the purposes of the point, that the tilings pictured were properly identified; for no reason whatever, as it seems, can be assigned to support their use, except that respondent had no other evidence. That is not a legitimate reason, since the fact involved was susceptible of better proof in
Now a few words on the proposition as to whether the objects photographed were satisfactorily identified as the broken hoops that came from the vat, and why I regard the opinion of the court liable to mislead as to the legal test of the sufficiency of the evidence on the question of competency. What facts are necessary to competency is purely matter of law for ’the court to determine. The existence or nonexistence of such facts is also primarily a question for solution by the court on evidence. _ Such evidence, if true, should be sufficient In legal effect to establish such facts. It should be sufficiently persuasive to convince the judicial mind of a fair probability of its truthfulness. Jn case of conflicting probabilities as to .such truthfulness, creating fair doubt on that point, the question involved is one of credibility. That is distinct from the element of competency. Probability of the truthfulness warrants a decision in favor of the latter element, while the evi-dentiary effect still waits upon the determination of the jury on the question of credibility. Best, Ev. (Intern, ed.), § 132. 'The conclusion reached by the trial court is as binding on the reviewing court as the verdict of the jury on an issuable fact in the case. That is, it is regarded in such court as a verity unless wrong beyond reasonable controversy. Emery v. State, 101 Wis. 627, 648, 78 N. W. 145. Applying that test to the
On the question of whether there is any evidence to sustain the verdict of the jury that appellant was guilty of a failure to exercise ordinary care in respect to' discovering that the hoops were unsafe, I agi’ee with what is said in the opinion filed by Justice BaedeeN. I am unable to point to any evidence or circumstance indicating, failure of duty on appellant’s part. There was nothing in the age of the vat, the quality of the hoops, the manner in which they had been cared for, or their appearance on tire tank, to suggest that they were dangerously defective. All the indications up to the time of the accident point to the contrary. As Justice Bak • deeN suggests, if we are to say that there was sufficient evidence on the question of competency to overrule the trial court on that question, still the credibility of the pictures as evidence remains to be determined in the light of all the other evidence in the case; and it seems neither the jury nor the court was warranted in deciding that they overshadowed the large amount of evidence that the hoops, when in place on the vat, did not show any serious defects. The mere appearance of some broken, worn-out hoops, not shown unmistakably to be the ones that came from the vat, cannot reasonably successfully impeach the undisputed evidence that those in controversy were comparatively new at the time of the accident, and