Vaughan v. Transit Dev. Co.

• Decision Date: 04 December 1917
• Parties: VAUGHAN v. TRANSIT DEVELOPMENT CO.
• Court: New York Court of Appeals Court of Appeals

222 N.Y. 79

118 N.E. 219

VAUGHAN

v.TRANSIT DEVELOPMENT CO.

Court of Appeals of New York.

Dec. 4, 1917.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Timothy Vaughan against the Transit Development Company. From a judgment of the Appellate Division (166 App. Div. 899,150 N. Y. Supp. 1116), affirming a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed, and complaint dismissed.

D. A. Marsh, of Brooklyn, for appellant.

Edwin D. Webb, of New York City, for respondent.

POUND, J.

[1] The action is for personal injuries alleged to be due to defendant's negligence. It was tried before a jury which rendered a verdict in favor of the plaintiff upon which judgment was entered. On appeal to the Appellate Division therefrom and from the order denying defendant's motion on the minutes for a new trial, the judgment was affirmed. The decision by the Appellate Division was not unanimous as one of the justices sitting did not vote. Warn v. N. Y. C. & H. R. R. R. Co., 163 N. Y. 525, 57 N. E. 742. We must, therefore, on the defendant's exceptions to its motion for a nonsuit and the direction of a verdict, review the evidence to determine whether it supports or tends to sustain the verdict. Const. art. 6, § 9.

[2][3] Defendant supplies electric power to operate trolley cars to the Brooklyn Heights Railroad Company. On November 20, 1912, at about 9 o'clock in the forenoon, plaintiff, a motorman of the railroad company, fell into an opening in the floor of an inclosed toilet room, with water-closet and washstand, in one of defendant's power substations, a brick building about 50 by 100 feet square, and sustained personal injuries. The dimensions of the toilet room were about 6 feet by 5 1/4 feet. Defendant's plumbers had been working in this toilet room for half an hour or more previous to the accident. To do their work it was necessary to turn off the water from the street. To turn off the water it was necessary to raise a floor plate or trapdoor to get at the stop cocks. This exposed an opening in the floor on one side of the room about 1 foot 9 1/2 inches by one foot 4 1/2 inches and 4 feet deep, walled in on all sides. Plaintiff and other employés of the railroad company had used this toilet room for their convenience for years, without objection on the part of the defendant. They entered through a door into the front part where this trapdoor was and passed through another door in a partition which divided the room approximately into two equal parts into an inner compartment. The room was lighted by a window, and the plumbers say that they used no artificial light.

On this day, when the plumbers were at their work in the outer part of the room, their ladder leaning against the wall and the hole in the floor uncovered, immediately after the water had been turned on at the conclusion of the repairs, plaintiff, on his way to use the inner toilet, met with the accident complained of.

If plaintiff had had no permission to come on the premises he would have been a trespasser. If he had been there by invitation or on lawful business of interest to both parties he would have been an invitee. But he was there by permission, for his own convenience and his status was that of a bare licensee. Heskell v. Auburn L., H. & P. Co., 209 N. Y. 86, 102 N. E. 540 L. R. A. 1915B, 1127. Long-continued acquiescence in such use does not become an invitation. The law does not so penalize good nature or indifference, nor does permission ripen into right. Stevens v. Nichols, 155 Mass. 472, 29 N. E. 1150,15 L. R. A. 459.

The question is, What is the proper measure of defendant's duty or care to the plaintiff? The case was submitted to the jury on the theory that one who acquiences in the use of his premises by others for their convenience is bound to take ordinary precautions not to permit unexpected dangers to exist in the commonly traveled way without giving warning thereof. Lowery v. Walker (1911) A. C. 10. Defendant contends that its only duty toward plaintiff was to abstain from inflicting intentional, wanton, or willful injuries. Weitzmann v. Barber Asphalt Co., 190 N. Y. 452, 83 N. E. 477,123 Am. St. Rep. 560. In Fox v. Warner-Quinlan Asphalt Co., 204 N. Y. 240, 245,97 N. E. 497, 498 (38 L. R. A. [N. S.] 395, Ann. Cas. 1913C, 745), in which it was held that the gradual extension of a quarry across a roadway was not actionable negligence toward a licensee, Willard Bartlett, J., says:

‘As to mere licensees the extent of the obligation of the owners or occupiers of land not chargeable with affirmativenegligence is to refrain from inflicting upon such licensees intentional or wanton injury and from setting dangerous devices thereon such as spring guns or like agencies for the purpose of...