185 N.E. 708 | NY | 1933
Lead Opinion
The defendant railroad was the owner of a coal trestle some twenty-five feet wide and thirty feet high. The space below the deck of the trestle was partitioned off into fifty compartments, each compartment having two of the bulkheads, used to support the trestle, as side walls. The deck of the trestle served as a roof, while the base of the trestle served as a floor for all compartments. Planking constituted the other walls, and completed the inclosures. These pockets were designed to store coal, delivered to them by the railroad, through trap doors in the deck, from coal cars stationed on tracks running along the deck. Two of these coal pockets were in the occupation of the J.E. Hawley Coal Company, under lease or license from the defendant railroad. On a certain day the defendant delivered coal into one of the Hawley pockets, and the Hawley Company was unloading into trucks, on the outside of the trestle, through a shute which passed through the side wall of the pocket. The coal lodged and it became necessary to dislodge it with shovels. Several men, employed by *492 the Hawley Company, entered the trestle for this purpose. One of these men was Charles N. Potter, who made entrance to the pocket through the trap door in the deck of the trestle, and descended to the floor by means of a ladder, fastened to the bulkhead wall at points which placed the ladder just under the opening. After working for a time, Potter, attempting to make his exit, climbed the ladder, which broke from its fastenings, and precipitated him to the floor of the pocket causing his death.
The widow of Potter filed a claim against the J.E. Hawley Coal Company, the employer, and its insurance carrier, and received an award of death benefits. The award, paid by the carrier, operated to transfer any cause of action, held by the widow against the defendant railroad company, for negligent maintenance of the coal pocket, to the carrier. Accordingly, this action in negligence was brought, on behalf of the carrier, to procure damages for the death of Potter. A verdict was recovered at Trial Term. The Appellate Division reversed, and ordered a new trial. The plaintiff, having stipulated for a judgment absolute, has appealed to this court. For the purpose of the discussion, we will assume that, if the railroad owed a duty of care to Potter, it had breached that duty in not fastening the ladder more securely.
Liability for injuries or death, suffered by a visitor to dangerous structures or premises, arises from occupancy, not from ownership. The occupant having exclusive possession may forbid entrance to all visitors, in which case, with some exceptions, no duty of care arises, and the visitor may not complain if injured. On the other hand, the occupant, having such possession, alone may give an invitation, or grant permission to make entry. In that case a duty of care does arise to bind the occupant, the nature and extent of which depends upon the character of the visitor, as determined by the invitation or permission extended. Thus, the duty of *493
active care to make the premises safe is owed to an invitee, or business visitor; whereas the duty of disclosing or eliminating a known danger is the measure of the duty owed to a gratuitous licensee. As no duty whatever arises except through invitation or permission, and the measure of that duty depends upon whether there has been given the one or the other, ordinarily the duty of care, if any, binds no other than the occupant, who alone has power to invite or license. This may be subject to some exceptions such as when the owner leases dangerous premises knowing that the tenant will invite the public to visit the same. However, generally speaking, the owner, having parted with possession, and lost power to exclude or to invite, cannot be liable if the visitor be injured. These principles are universally acknowledged to be the law upon the subject. (Salmond on the Law of Torts, p. 452; The Law of Torts, Pollock [13th ed.], p. 527; 3 Shearman Redfield on the Law of Negligence, § 704; Am. Law Inst. Restatement of the Law of Torts, §§ 212, 213, 227; Haefeli v. Woodrich Engineering Co.,
The relationship between the Hawley Coal Company, the occupant of the pocket in question, and the defendant owner, is determined by the terms of two letters exchanged between them. Hawley wrote asking for the consent of the defendant that it might take over the lease of a previous occupant "at the present rental charge of 10 (10¢) cents per gross ton for all coal handled through said pockets." The defendant answered, saying: "You have my authority and approval to occupy these coal pockets" at the rental named. If we were to follow the decision in the old case of Wood v.Lake (Sayer's Reports, p. 3), which has been much discussed, we should doubtless be compelled to hold that the relationship of landlord and tenant did not exist between the defendant and the Hawley Coal Company. It was held in that case that when an owner orally stipulates with another that for a period of seven years that other may stack coal upon the owner's land, there is not a lease but a license, and no writing is required by the Statute of Frauds. In Kent's Commentaries ([14th ed.] vol. 3, p. 715), whereWood v. Lake is discussed, there is a note to the following effect: "If the agreement gives a right of exclusive occupation, and the landlord has nothing to do on the land, it is more than a license." However, it is unnecessary to determine whether or not the letters in question created a tenancy. As we have seen, the liability of the occupant or the owner is determined by the nature of the occupancy, and the invitation or license extended. If possession and control were exclusively in the Hawley Coal Company, whether its occupancy and control was by virtue of a *495 lease or a license, the owner defendant would not be liable.
For many years the Hawley Coal Company occupied the coal pocket for its own exclusive use. It alone deposited and stored coal in the compartment set apart for it. There can be no doubt that the parties intended that the Hawley Company should have the exclusive right so to store coal. Daily, Hawley's men entered the pocket through the trap door in the deck of the trestle, and did work therein. The railroad men, so far as the record shows, never entered the pocket, except on rare occasions to make needed repairs. That they so entered was not sufficient to indicate that the railroad reserved a measure of control over the pocket, or retained power to forbid or permit visitors to make entry thereto. (Cullings v. Goetz, supra.) In that case there was assumed "The possibility of so phrasing and enlarging the rights of the lessor that occupation and control will be shared with the lessee." There was no such phrasing of the letters which passed between the occupant and the owner.
The order should be affirmed, and judgment absolute ordered against the appellant on the stipulation, with costs in all courts.
Concurrence Opinion
I concur in the result. The court charged the jury: "Now the claim of the plaintiff is that the wrongful act of the New York, Ontario and Western Railway Company, which caused the death of Mr. Potter, was its failure to erect the ladder in this coal pocket in which he was working at the time originally in a reasonably safe condition for the use for which it was intended, and also their failure to maintain that ladder in a reasonably safe condition for use, and unless you find that fact to be true there cannot be any recovery for the plaintiff in this case." *496
There is no evidence that the ladder was not constructed originally in a proper way or that it afterwards became out of repair before the day of the accident, June 7, 1928. In fact, all the evidence shows that the men using the ladder on the day of the accident found it safe and noticed no defects. At the time the deceased fell the ladder had pulled away from its fastenings evidently causing the accident. No notice of any loose or defective condition came to the knowledge of the owner or lessee either actually or constructively.
For these reasons I am for affirmance.
POUND, Ch. J., O'BRIEN and CROUCH, JJ., concur with KELLOGG, J.; CRANE, J., concurs in result in memorandum; LEHMAN, J., concurs in result; HUBBS, J., not sitting.
Ordered accordingly. *497