70 P. 864 | Kan. | 1902
The opinion of the court was delivered by
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
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.)
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
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.