104 Ark. 236 | Ark. | 1912
(after stating the facts). It is contended by appellant that appellee was a trespasser upon its grounds, to whom it owed no duty, except not to wantonly injure him, and in any event that said instruction numbered 1 is erroneous; and, upon the other hand, that appellee was there by invitation of the company and injured by its negligence without fault upon his part.
“As a general rule, the owner and occupier of real estate is under no obligation to make it safe or to keep it in any particular condition for the benefit of trespassers, intruders, mere volunteers, or bare licensees, coming upon it, without his invitation, express or implied. * * * The owner of real property who expressly or impliedly invites the public, or particular members of it, to come upon his premises, assumes the duty toward them to exercise reasonable care to the end that such premises shall not contain dangerous obstructions, pitfalls, or the like, which may result in their injury; and if, coming upon his premises by such express or implied invitation, they are injured without their own negligence or fault, by reason of his failure to exercise reasonable care to have his premises safe, they may compel him to pay damages.” 1 Thompson on Negligence, § 945; 2 Cooley on Torts, p. 1268.
“The owner of private property is under no obligation to keep it in a safe condition for trespassers or idlers, or those who come upon the premises, not upon invitation, express or implied, but for their own convenience or pleasure.” 2 White on Personal Injuries on Railroads, § 1086.
In St. Louis, I. M. & S. Ry. Co. v. Dooley, 77 Ark. 561, the court said: ‘ ‘The bare permission of the owner of private grounds to persons to enter upon his premises does not render him liable for injuries received by them on account of the condition of the premises. But if he expressly or impliedly invites, induces or leads them to come upon his premises, he is liable in damages to them— they using due care — for injuries occasioned by the unsafe condition of the premises, if such condition was the result of his failure to use ordinary care to prevent it, and he failed to give timely notice thereof to them or the public.” Hobart-Lee Tie Co. v. Keck, 89 Ark. 128; Railway Co. v. Ferguson, 57 Ark. 16.
Our court has held further that railroad companies owe no affirmative duty of care to bare licensees, who must take their license with its concomitant perils. Arkansas & La. Ry. Co. v. Sain, 90 Ark. 278; St. Louis, I. M. & S. Ry. Co. v. Tomlinson, 69 Ark. 489; Chicago, R. I. & P. Ry. Co. v. Payne, 103 Ark. 227.
From the authorities, it appears that plaintiff had no right to recover in this suit if he was no more than a trespasser or licensee, there being no proof of any wanton injury, or that appellant had any notice of his being in a place of danger in time to have avoided injuring him.
It will not be questioned, however, that a man has the right to labor and to seek employment wherever it can be found, without invading the rights of others, and in seeking employment of a railroad company he will not be regarded as acting for his own convenience, but rather for a purpose connected with the business of the railroad as well; or the common interest or mutual advantage of himself and such company, which must employ agents and servants in order to operate its road and transact its business. If Wirbel understood that appellant company was in need of and employing firemen at McGehee, he had the right to go to the place where men were usually employed there and ask employment of any agent of appellant company authorized to engage such employees; and, if the master mechanic was appellant’s agent for the employment of such servants, and Wirbel went to his office seeking employment, as he said he did, he was within his right in so doing. Shelby v. Cinn., N. O. & T. P. Ry. Co., 85 Ky. 229, 3 S. W. 157; 2 Cooley on Torts, p. 1265.
In order to recover, Cooley says that the plaintiff must not only show an invitation, express or implied, but also that at the time of the injury he was in the part into which he was invited to go, and that he was using the premises in the manner authorized by .the invitation. 2 Cooley on Torts, p. 264; Smith v. Hopkins, 120 Fed. Rep. 921; Schmidt v. Bauer, 22 Pac. (Cal.) 256; Stamford Oil Mill Co. v. Barnes, 128 S. W. (Tex.) 375.
If the master mechanic had authority to employ locomotive firemen and was accustomed to do so at his office or anywhere in the yards where he might be found, and his office man directed appellee to seek him in the yards, in so doing he still had the right to rely upon the invitation and the duty of appellant to exercise ordinary care to protect him from injury, and, so long and into such places as he could go in the yards, without being himself negligent, he would have the right to continue the search for the master mechanic; and, if he was injured by the negligence of appellant while so engaged and in the exercise of ordinary care himself, it would be liable for the injury. But there was no testimony in the case showing that it was customary for the master mechanic, or that he had authority, to employ servants of the class in which plaintiff desired employment, nor any testimony showing that such servants were employed at his office, or had ever been employed in the yards, wherever he might be found.
Instruction numbered 1, given, was erroneous, therefore, in any event. It declared the law to be that, if plaintiff went to the place of the injury, not as an idler or loafer, but in search of the master mechanic with the bona fide intention to obtain employment in’the service of the defendant company as a locomotive fireman, and while so engaged was injured, without any negligence or want of ordinary care on his part, by the breaking down of certain machinery, of the defective condition of which the defendant had had notice a sufficient length of time to cause it to be repaired, he could recover; making his right to recover dependent, not upon the question of whether he was upon the company’s premises by invitation, and excluding entirely from the jury the question of whether or not the company owed him a duty to protect him while upon its premises and was negligent in having failed to exercise ordinary care in the performance of that duty.
It was shown that the machinery which collapsed and injured appellee was in a defective and dangerous condition of which the company had long had notice, but the question of whether the failure to repair said machinery was a lack of ordinary care upon appellant’s part to protect appellee, who was but temporarily on its premises, and not expected to be about this machinery at all, was one for the jury, and, as already said, taken from it by said instruction. If appellee was rightfully at the place where he was injured, and it devolves upon him to show by a preponderance of the testimony that he was, then the company was only bound to the exercise of ordinary care to protect him against injury at the time and place; and as to whether it failed to exercise such care the jury alone could determine, under proper instructions. If the injury that occurred from the bursting of the machinery was not one that could reasonably have been foreseen as the natural and probable consequence resulting from the failure to repair the machinery, in the light of the attending circumstances, it was not caused proximately by the failure of the appellant to repair the machinery, and appellee had no cause of action at all. As to whether it did proximately result from such negligent act, would also have been a question for the determination of the. jury. Pulaski Gas Light Co. v. McClintock, 97 Ark. 576; Helena Gas Co. v. Rogers, 98 Ark. 413.
For the error indicated, the judgment is reversed, and the cause remanded for a new trial.
