29 Ohio St. 364 | Ohio | 1876
We find in the record of the present case among the questions argued, but one deserving consideration ; and that one may be stated as follows :
“ Is a railroad company bound to exercise ordinary care and skill in the erection, structure, or maintenance of its station house or houses, as to persons who enter or are at the same, not on any business with the company or its agents, nor on any business connected with the operation of its road; but are there without objection by the company, and therefore by its mere sufferance or permission ?” We must give to this question a negative answer. A careful examination of the adjudged cases bearing on the point has led to the discovery of none supporting, much less sustaining, the proposition contended for by the defendant in error. The question in its legal bearings is kindred to the one decided and settled in a class of cases, of which Hounsell v. Smith, 7 C. B. N. S. 731, is an example. In that case the plaintiff fell into a quarry, left open and unguarded on the uninclosed waste lands of the defendant, over which the public were permitted to travel. In an action for the injury, it was held that the owner was under no legal duty or obligation to fence or guard the excavation,- unless it was so near to a public road or way as to render it dangerous to travel thereon. The court say, “ The person so traveling over-such waste lands must take the permission with its concomitant conditions and, it may be, perils.” That an owner is not liable for an injury from pitfalls or excavations to one who enters his premises uninvited, and by mere license or permission, is well sustaine d by the authorities.
In Southcote v. Stanly, 1 Hurlst. & N. 247, L. J. 25 Ex. 339, a visitor at defendant’s house was injured by the falling of a glass door, through the negligence of the defendant. It was held that the plaintiff having, pro hae vice, become an inmate of the defendant’s family, a rale similar to that of fellow-servants applied. In Peirce v. Whitcomb, 48 Vt. 127, plaintiff' and defendant went to defendant’s barn, at night, to measure up some oats, which the defendant sold to-the plaintiff' for the latter’s accommodation, having none he wished to sell. While the defendant was looking for a measure, the plaintiff', walking about the barn in the dark, fell through a hole in the floor, and was injured. It was-held he could not recover.
But, if such dangerous place or pitfall or excavation is by the side of a public road or footway, along, or over which, thepublic have the right, and are accustomed to travel, it becomes the duty of the owner to adopt suitable and reasonable precautions to guard the public against injury resulting from the proximity of-such dangerous place to the highway thus rightfully enjoyed. Barnes v. Ward, 67 Eng. C. L. 393; Firmstone v. Wherley, 2 D. & L. 208, Pollock, B.; Corby v. Hill, 4 C. B., N. S. 556; Hargreaves v. Deacon, 25 Mich. 5; Young v. Harvey, 16 Ind. 314; Mullen v. St. John, 57 N. Y. 567. Or, if a structure is erected near the line of another’s land, and falls over on it to his injury, the owner of the structure is liable. Schwarts v. Gilmore, 45 Ill. 455; Shearm. & Redf. on Neg., par. 498.
The principle underlying the cases above cited recognizes the right of the owner of real property to the exclusive use and enjoyment of the same without liability to others, for injuries occasioned by its unsafe condition, where the person receiving the injury was not in or near the place of danger by lawful right; and where such owner assumed no responsibility for his safety by inviting him there, without
Actionable negligence exists only where the one whose-act causes or occasions the injury ow.es to the injured person a duty, created either by contract or by operation of law, which he has failed to discharge. In Burdick v. Cheadle, 26 Ohio St. 393, the owner of a store building had leased it to a tenant, who was in the occupancy of the-same, selling goods therein. Certain shelvings and fixtures-not properly secured, fell, and injured the plaintiff, a customer of the tenant, for which injury the customer brought, an action against the landlord. It was said by Mcllvaine,. J., that there was no privity between the owner of the property and the plaintiff, and that the former owed no-duty to the latter which was violated by a careless construction or fastening of the fixtures ; and that the fact that the room was to be kept open to the customers of the tenant did not affect the question.
But the question naturally arises, to what extent does the right of a railroad company to the control and use of its r,eal property differ from that of a general owner of land not burdened or incumbered with a public charge? What restrictions and limitations are imposed upon the use and enjoyment of the real property of the company that do not exist in the case of the ownership of property not employed for public purposes? These questions are not difficult to answer. The right to the possession and control of the property of a railroad corporation for all purposes contemplated by its charter, and to enable it to accomplish the
The case of Nicholson, Administratrix, v. The Erie Railway Co., 41 N. Y. 525, rests upon this principle. The company had left on a branch track four empty cars and one loaded one. The brakes to the four cars were not set or secured, and they were started by a violent wind and ran against the loaded car, propelling it forward and causing it to run against and over the plaintiff’s intestate, who was upon the track, killing him. The place where the branch track was constructed, was open and unfenced, and was
It is doubtless true that a railroad company, by erecting station-houses and opening them to the public, impliedly license all persons to enter. But it is equally true that such license is revocable at the pleasure of the company as to all persons who are not there on business connected with the road, or with its servants or agents. Commonwealth v. Powers, 7 Met. 596; Nicholson v. The Erie Railway Company, supra, 532. In Harris v. Stevens, 31 Vt. 90, it is said: “ The right 'to enter (a depot) and remain, exists only by virtue of, and as incident to, the right to go upon the train, and it is to be extended so far only as is reasonably necessary to secure to the traveler the full and perfect exercise and enjoyment of his right to be carried upon the cars.” An implied license to enter a depot creates no additional duty upon the part of the company as respects the safety of the building entered. Its only effect is to make that lawful, which, without it, would be unlawful. Wood v. Leadbitter, 13 M. & W. 838. It is a waiver or relinquishment of the right to treat him who has entered as a trespasser.
In Sweeny v. Old Colony and Newport Railroad Company, 10 Allen, 372, the court say: “ A licensee, who enters on premises by permission only, without any enticement, allurement, or inducement being held out to him by the owner
The case of Tobin v. The P. S. & P. R. R. Co., 59 Maine, 183, cited by defendant’s counsel, instead of supporting the defendant’s claim, sustains the opposite. The plaintiff was a hackman, carrying passengers to the cars, and while stepping from his carriage to the platform, was injured by a defect in the latter, occasioned by a want of ordinary care'in the company. A recovery was sustained, on the-ground that a “ hackman carrying passengers to the railroad depot for transportation, and aiding them to alight upon the platform of the company, is as rightfully upon the same as the passengers alighting.”
A recovery was also sustained in Toledo, Wabash and Western Railway Co. v. Grush, 67 Ill. 262, for an injury to the-defendant, resulting from stepping accidentally through a hole in the platform, carelessly left open, the defendant being at the depot looking for freight belonging to his employer. The case of Gillis v. Pennsylvania Railroad Co., 59 Penn. St. 129, fully sustains the position and claim of the-plaintiffs. It was there held that the platform of a railroad company, at its station, is in no sense a public highway ; that it is not dedicated to public use; that it is for the accommodation of passengers; but, being uninclosed, persons have the privilege, but not the legal right of walking over it for other purposes; and that “ the owner is not.: liable to a trespasser, or one who is on his property by
His presence at the depot was uninvited, and the com;pany did not owe to him the duty to keep its station-house in a safe and secure condition. Its negligence, if any, was 'necessarily negligence of omission, negligence in having ■omitted the exercise of ordinary care to ascertain the dan■gerous character of the building. If the question was between the company and its employes, whose duty it was to occupy the building, or if it arose between the company •and those who came to take passage on its cars, or to accompany a friend about to depart, or to await the arrival •of one expected, or to engage in any business connected with the operation of the road, or business with those engaged in its service and having a legal right to be and remain there; or, if the company had possessed knowledge, in fact, of the dangerous character or condition of "the building, and gave no notice thereof to those it permitted to enter or occupy, other considerations would arise. It, however, is not charged with intentional wrong, nor with that gross or reckless misconduct that is difficult to ■distinguish from it, and therefore is equivalent to it. All it could have done, when the storm approached, to save the -deceased from harm, was to see that he left the building, ¡and thereby escaped the danger. This was not a legal •duty. He was injured by no act of the company, or its ¡servants or agents, occurring at the time. The fault was
Judgment of the district court and of'the common pleas-reversed, and cause remanded.
