Docket No. 85 | Mich. | Sep 27, 1917
(after stating the facts). The ruling in Gold v. Railway, supra, is based upon Jackson Bridge & Iron Co. v. Insurance Co., 122 Mich. 433" court="Mich." date_filed="1899-12-21" href="https://app.midpage.ai/document/jackson-bridge--iron-co-v-lancashire-insurance-7940399?utm_source=webapp" opinion_id="7940399">122 Mich. 433 (81
It is admitted by plaintiff that his decedent was not invited upon the defendant’s premises. He disclaims any aid from the doctrine of the Turntable Cases, so called. Those cases, recognizing the rule that one whose entry is simply not opposed and prevented is not invited upon premises, found an invitation to children to enter premises in the attractive tiling erected or maintained thereon. Plaintiff’s contention rests upon three assumed facts: (1) That plaintiff’s decedent was a licensee; (2) a change made by the owner in premises which plaintiff’s decedent was licensed or permitted to use, creating a peril; (3) an injury growing out of the customary , use of the premises by the licensee and the peril actively created by the owner —a wilful act of injury.
I find no testimony tending to prove that children habitually played on the logs, or on the ground where they were deposited. There is testimony tending to prove that, two days before the occurrence here in question, some children were playing on the logs; but there is no testimony tending to prove that any officer or agent of defendant knew about it. This answers precisely a question which the court submitted to the jury, namely, whether the defendant “did actually consent that these children might occupy that particular place as a playground” — a question which the court made a vital one and should have answered favorably to defendant. There is no need, perhaps, to here comment upon the use by the court, in the part of the charge referred to, of the expressions “consented
As, at the best, acquiescence in a use of the premises —license to use them — must depend upon some known customary use, if we assume that plaintiff’s decedent was a licensee, no testimony tends to prove a license to use the roadbed of defendant’s tracks for any purpose. There is no testimony tending to prove that the depositing of logs along the track was a new use of the property, and none tending tó prove that the depositing of the logs created a peril affecting any cus- - tomary use of any part of the premises by any of the public.
It follows that the court, upon the evidence, ought to have determined the case favorably to defendant, and that the judgment must be reversed, with costs to appellant.