203 F. 1 | 6th Cir. | 1913
On September 2, 1909, the defendant, as general contractor, engaged with the Central Bank & Trust Company to furnish all the labor and
The defendant’s principal contentions are: (1) The plaintiff’s injury was due to the collateral negligence of an independent contractor, for which the defendant as a general contractor is not liable, the present case not coming within any of the exceptions which affix liability to a general contractor; (2) the proximate cause of the plaintiff’s injury was the intervening act of a trespasser in the building at the lunch hour on an errand of his own and who was not in the employ of any one connected with the building in the course of construction. The plaintiff’s insistence is that it was the defendant’s duty to keep the building in a reasonably safe condition for all employés therein, and that such duty was not delegable.
“It seems to us that many oE the American cases which we have cited failed to draw the proper distinction Between the liability of an owner of premises to persons who sustain injuries as a result of the mere condition of the premises, and those who come to harm by reason of subsequent conduct of the licensor inconsistent with the safety of persons permitted to go upon the premises, and whom he was bound to anticipate might avail themselves of his license. This distinction, seems to be sharply emphasized in the case of. Corby v. Hill, 4 C. B. (N. S.) 562, and is a distinction which should not be overlooked. If there he any substantial difference between the legal consequence of permitting another to use one’s premises and inviting or inducing such use, the distinction lies in the difference between active and the merely passive conduct of such a proprietor. It may be entirely consistent with sound morals and proper regard for the rights of others that the owner of . the premises should not be held liable to one who gets upon another's premises for his own uses, and sustains some injury by reason of the unfitness*6 of the premises for such uses, not subsequently brought about by the active interference of the owner. If such person goes there by mere sufferance or naked license, it would seem reasonable that he should pick his way, and accept the grace, subject to the risks \yhich will pertain to the situation. But, on the other hand, if, with knowledge that such person will avail himself of the license, the owner actively change the situation by digging a pitfall, or opening a ditcli. or obstructing dangerously the premises which he has reason to believe will be traversed by his licensee, sound morals would seem to demand that he should give reasonable warning of the danger to be encountered.”
The rule so stated has been observed by this court in Ellsworth v. Metheny, supra, Tutt v. Ill. Cent. R. Co., 104 Fed. 741, 744, 44 C. C. A. 320, Wright v. Stanley, 119 Fed. 330, 332, 333, 56 C. C. A. 234, Dishon v. Cincinnati, N. O. & T. P. Ry. Co. (C. C.) 126 Fed. 194; 206, De Haven v. Hennessy Bros. & Evans Co., 137 Fed. 472, 476, 69 C. C. A. 620, and Winters v. B. & O. R. Co., 177 Fed. 44, 50, 100 C. C. A. 462. See, also, Northern Pac. Ry. Co. v. Jones, 144 Fed. 47, 75 C. C. A. 205 (C. C. A. 9), and Garner v. Trumbull, 94 Fed. 321, 36 C. C. A. 361 (C. C. A. 8).
Ellsworth v. Metheny is instructive and closely in point. There was evidence that Metheny was killed in an entry in a coal mine where the miners were accustomed to go at noon for the purpose of eating their dinners and for social intercourse. Indulgence in this practice was with the knowledge of and without objection from the owner. Although Metheny was not, during such noon hour, engaged in the course of his employment and consequently not entitled to the protection accorded an employe, he was, nevertheless, a licensee using the entry with the implied consent of his employer. Some three weelcs prior to his death the mineowner had introduced into and strung along the wall of such entry a highly dangerous electric wire, with which the workmen might come in contact when passing back and forth. It was thought that the mineowner might not, without responsibility, actively change a situation of previous. safety by introducing a highly dangerous device into a place thus used with his consent, and that sound morals and just treatment demanded that the licensee should have had notice of the. new danger which he was likely to encounter in using the premises. It was said that if, on a rehearing of the case, the testimony should warrant the finding that the electric apparatus as actually introduced into the mine was dangerous to the life and safety of the employés and they were ignorant of that fact, or could not know it in the exercise of 'ordinary care to avoid injury, and the same was placed with the knowledge and consent of their employer in a part of the mine which .the men were accustomed to use and occupy during the hour of rest and refreshment when not actively engaged in their duties, a duty was imposed upon the employer in thus introducing into his mine a new and dangerous element properly to guard and protect the men, or to give notice of the danger to those whom he should reasonably apprehend were likely to be brought into contact therewith.
Another and recent case in which the rule here invoked was applied and with the same result is Wilson v. Hibbert, 194 Fed. 838, 114 C. C. A. 542.
Other errors are assigned and argued, but they are not well taken, and are not deemed of sufficient importance to warrant extended consideration.
No error appearing on the record, the lower court is affirmed.