Woodland Gin Co. v. Moore

• Decision Date: 27 January 1913
• Citation: 103 Miss. 447,60 So. 574
• Court: Mississippi Supreme Court
• Parties: WOODLAND GIN CO. v. J. C. MOORE

60 So. 574

103 Miss. 447

WOODLAND GIN CO. v. J. C. MOORE

Supreme Court of Mississippi

January 27, 1913

October 1912

APPEAL from the circuit court of Chickasaw county, HON. H. K. MAHON Judge.

Suit by J. C. Moore against the Woodland Gin Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed and dismissed.

A. T Stovall, for appellant.

An owner allowing the public to use a path across his land is not bound to keep his entire premises in safe condition for pedestrians, and when a person leaves the path and wanders in a ditch partly concealed from view, the owner is not liable. 50 S.E. 1003.

Defendant was under no obligation to render her premises safe for any purpose for which she could not reasonably anticipate they would be used. 34 N.W. 566.

Obviously the rule that a keeper of a public place of business is bound to keep his premises and the passageways in a safe condition, and use ordinary care to avoid accidents and injury to those properly entering upon the premises on business, does not apply to such parts of the building as are used for the private purposes of the owner, unless the party was induced by the invitation or allurement of the owner, expressed or implied, to enter thereon. 1 Thompson on Negligence, 989.

The owner of land owes no duty to a licensee who enters thereon of his own pleasure without inducement, except to refrain from doing him willful or wanton injury. 78 Miss. 787.

Plaintiff was not on business with the company but was upon its lot of land in pursuit of his own errand and pleasure. A person who, without invitation or inducement of the owner, goes upon the land or premises of the owner, takes such premises with all the dangers attending it. The appellee, in going upon the private lands of appellant took upon herself all such risks of such entry. The damages suffered by her are not an injury for which an action lies. 78 Miss. 787.

Whether trespasser or licensee it was still his duty to conduct himself with ordinary care and prudence for his own protection. Whether there be any real distinction between the duty owing to a trespasser and that owing to a licensee, the burden of exercising ordinary care is incumbent upon the party even if a licensee. He was not at the time at a place where duty called him, or invitation attracted him. 87 Miss. 488.

It has been reasoned that an invitation to the public having lawful business on an individual's premises, implied by the aspect of the house and grounds, does not cover the whole yard, irrespective of pathways, necessary lines of travel, or anything on the premises promising security. If for his own convenience, a person leave the usual and ordinary way, or for any other reason save a defect in the usual way, and seek to depart from the premises by another way, he remits himself to the condition of a bare licensee, so, that he cannot recover damages in case he is injured while so making his exit. 1 Thompson on Negligence, 990.

Bare licensees take the premises of the landowner as they find them, and come upon them at their own risk, and he is under no duty to exert himself to keep them safe for their benefit. . . . Where a man establishes a private way of any sort for his own purposes merely, the mere fact that he is not so unneighborly as to exclude the public from the use of it ought not, it would seem, to place him under any particular duty to care for it to the end of promoting their safety. 1 Thompson on Negligence, 1015.

In an action to recover damages for an injury resulting from negligence of defendant, the rule as to burden of proof of concurring negligence on the part of the plaintiff is that the plaintiff must satisfy the jury, in order to entitle him to recover, that he was not guilty of negligence which contributed to produce the injury. 65 Barb. 146.

In view of the law and the facts in this case the peremptory instruction should have been given defendant, it is clearly a case of damnum absque injuria, and I respectfully ask the court to reverse the case and remand the cause.

Joe H. Ford, for appellee.

The main contention of counsel for appellant in this cause is that the court refused to give a peremptory instruction to find for the defendant, or, to put it in another form, admitting all the facts shown by this record, and the reasonable inference to be drawn therefrom, plaintiff should not have recovered. I submit that he is wrong in this. We have here a cause where this machinery had been operated as a public cotton gin, grist mill and sawmill since its construction about three years before the injury, and during this time the entire public was invited by appellant to come there. This large machinery, pool and all, was situated on a very small space of ground, 150 feet square, which was entirely surrounded by public streets. During this three years this entire lot was used, by invitation of appellant, by the public on both sides of this very dangerous ditch which was left open and entirely unprotected; on the east side by the public who patronized the gin, sawmill and gristmill, in watering their stock at the public watering place put there by appellant "for the convenience of its customers," and "as an inducement to the public" to come to its gin, sawmill and gristmill; on the west, as a sawmill and public log and lumber yard. It was absolutely necessary to the transaction of the particular business carried on there for its own benefit, that the public should bring their stock and teams on the premises. It was therefore incumbent on appellant to afford the public safe and proper premises, and to exercise due care and caution to protect the public from danger, having due regard to the character of the business carried on, both as to their persons and property. 2 Cooley on Torts (3 Ed.), p. 1258; Lepnick v. Gaddis, 72 Miss. 200, 26 L. R. A. 686; 16 Am. and Eng. Ency. of Law (1 Ed.), pp. 413 and 414, notes; Haywood v. Miller, 34 Am. Rep. 229; Davis v. Central Cong. Society of Ja. Plains, 37 Am. Rep. 386.

Counsel for appellant cites Railroad Co. v. Arnola, 78 Miss 787, as authority to sustain his contention. It is clear by reference to this case that it is not at all in point. This court, in that case, pointed out the fact that "the appellee was not on business with the company, but was upon its lot of land in pursuit of her own pleasure and errand." He...