Iola Portland Cement Co. v. Moore, 70 P. 864

Iola Portland Cement Co. v. Moore

70 P. 864 | Kan. | 1902

The opinion of the court was delivered by

Burch,

record in this case presents but two questions for determination: (1) The extent of the duty of the cement company to Moore; and (2) whether Moore was himself free frorq such fault as would preclude recovery.

It is wholly unnecessary to enter upon any discussion of the duties of a landowner to one who enters upon his premises by mere “sufferance,” or “license,” or “permission,” and without “inducement,” or “allurement,” or “enticement,” or “invitation.” No refinement upon any of these terms is required in estimating the facts of this case. Its superintendent says the cement company “gave up” the track on *767which the injury occurred to the brick company. It appears that this was done for the business purposes of the brick company and the railway company, and that the use contemplated involved the running of trains operated by crews of men back and forth over the track without previously communicating knowledge of the time of such action to the cement company. There was, therefore, a surrender of the property to the users, which, in effect, operated as a grant revocable at will.

It is immaterial that the consideration was one of favor only. The relationship established, whatever the motive, was the essential thing, and it follows from the testimony quoted that the track in question was, for all purposes of the law, the track of the railway and brick companies until the cement company chose to reclaim it. An obstruction of the track might be notice of a revocation of the authority to use it, but such notice should be communicated in some manner not jeopardizing life and limb in its cognizance. The use of the track by the railway company, and, therefore, by the plaintiff in the discharge of his duties as a member of one of its train crews, was lawful and was rightful against the cement company, and while the track was accepted in the condition it presented when given up, and subject to all the hazards it then disclosed, the owner could not, without notice, create new perils and escape liability for disasters entailed upon persons innocently relying on the former status of affairs. (Corby v. Hill, 4 C. B. N. S. *556; Corrigan v. Union Sugar Refinery, 98 Mass. 577 ; Pomponio, Admr., v. N. Y. N. H. & H. R. R. Co., 66 Conn. 528, 32 L. R. A. 530 ; Barry v. N. Y. C. &H. R. R. R. Co., 92 N. Y. 289 ; Morrow v. Sweeney, 10 Ind. App. 626; 1 Thomp. Neg. §§ 968, 969.)

*768Under Moore’s own testimony, he was not, as a matter of law, guilty of contributory negligence. The jury might well conclude that he understood the first question propounded to him as quoted above to relate to a general watchfulness of one trainman over another’s welfare while occupied in the performance of duty, amid the perils of an employment presenting daily traps for them all, and not as comprehending prudence for his own safety while engaged in reaching and setting his brake. When the latter subject was pressed upon him, he answered : “I did n’t have to look to see them.” Under the law, it was his duty to observe all dangers threatened by any structure connected with, or incident to, the use of the track or movement of the train, but he was not bound to an anticipation of any obstruction not involved in, or relating to, the operation of the road. The gin-pole and guy-rope were impediments of such character. They had nothing to do with railroading at that place. They had no proper or rightful connection with any brakeman’s environment, and he was no more compelled to guard against them than against some sudden trespass. If he had knowledge of their existence, he would be chargeable with the necessity of avoiding them-, but he could not be careless respecting that of which he was ignorant, and of which he was not compelled to inform himself. [Kearns v. The Chicago, Milwaukee & St. Paul Ry. Co., 66 Iowa, 599; 7 A. & E. Encycl. of L. [2d ed.] 392; Beach, Contr. Neg. [3d ed.] § 36.)

Of course, no one can close his senses to that which is perfectly manifest and palpable ; but whether or not Moore actually kn'ew of his danger, and whether or not the position of the gin-pole and guy-rope w.ere so conspicuously apparent as to make a failure to see *769them negligence, under the circumstances attending his work, were questions for the jury. ( Gustafsen v. Washburn & Moen Manuf. Co., 153 Mass. 468 ; A. T. & S. F. Rld. Co. v. Rowan, 55 Kan. 270, 39 Pac. 1010.)

While the evidence is conflicting in a number of important particulars, the verdict is amply sustained, and the judgment of the district court is affirmed.

All the Justices concurring.