Parker v. Portland Pub. Co.

• Decision Date: 07 February 1879
• Citation: 69 Me. 173
• Parties: DWIGHT G. PARKER v. PORTLAND PUBLISHING COMPANY.
• Court: Maine Supreme Court

69 Me. 173

DWIGHT G. PARKER v. PORTLAND PUBLISHING COMPANY.

Supreme Judicial Court of Maine.

February 7, 1879

ON EXCEPTIONS AND MOTION.

ACTION on the case for negligence.

Plea general issue. Verdict for plaintiff for $4,000.

The facts, and so much of the bill of exceptions as are necessary to the understanding of the points decided, appear in the opinion.

S C. Andrews, A. A. Strout & G. F. Holmes, for the plaintiff.

T. B Reed, for the defendant.

APPLETON C. J.

This is an action on the case for negligence.

The defendants had their counting room on Exchange street, on the lower floor. The editorial and composing rooms were on the second floor. At the head of the stairs is a hall, on the right hand is the door leading to defendants' rooms, and on the left is an elevator-way with folding doors.

The plaintiff, as he alleges, on the 17th of September, 1875, between eleven and twelve o'clock at night, was proceeding to the defendants' rooms on the second floor, the counting room being closed, for the purpose of procuring the insertion of a notice in the newspaper published by them, when, there being no sufficient light in the hall, and the doors to the elevator way being left open, he fell down the elevator-way and was seriously injured.

The question for determination was whether there was negligence on the part of the defendants, at the time when and the place where the plaintiff sustained the injury for which he seeks compensation; not whether there was negligence at other times and under different conditions. If the defendants are liable, they are not liable for past neglects, when an injury might have occurred but did not. Nor do previous omissions of duty prove, or tend to prove, the particular neglect of which the plaintiff complains.

I. Evidence, embracing a period of two years, tending to show at different times the condition of the hall-way and entrance to the Press editorial and composing rooms, as to light--whether more or less, or none--of the position of the elevator gate and doors, of what had happened to other men at other times, and of their fortunate escape from peril, was received, notwithstanding the seasonable and strenuous objections of the defendants.

These facts were all collateral to the main issue, and should have been excluded, " and the reason is, that such evidence tends to draw away the minds of the jury from the point in issue, and to excite prejudice and mislead them; and, moreover, the adverse party, having no notice of such a course of evidence, is not prepared to rebut it." 1 Greenl. Ev., § 52. " It may be added, that the evidence not being to a material point, the witness could not be indicted for perjury if it were false." 1 Greenl. Ev., § 448.

It was immaterial to the issue whether, on some particular day or night previous to the plaintiff's injury, the gates to the elevator had been closed or not; whether there had been sufficient light in the hall or not, or whether some individual had or had not been exposed to injury and had escaped. If evidence of this character is receivable, contradictory proofs would be admissible, and there would be as many collateral issues as there were collateral facts and witnesses testifying to them.

The entire weight of judicial authority is against the reception of the evidence received subject to objection. The attention of the jury would be diverted from the questions really in dispute, and directed to what is entirely collateral. Hubbard v. A. & K. Railroad Co., 39 Maine 506. Aldrich v. Pelham, 1 Gray 510. Kidder v. Dunstable, 11 Gray 342. Collins v. Dorchester, 6 Cush. 396. Gahagan v. B. & L. R. Co., 1 Allen 187. In re Baltimore & Susquehanna R. R. Co. v. Woodruff, 4 Md. 242. Schoonmaker v. Wilbraham, 110 Mass. 134. " The evidence of what had happened at the same place the year before," observes Gray, C. J., in Blair v. Pelham, 118 Mass. 420, " was rightly rejected; because it tended to raise a collateral issue; because, it being admitted that the highway had been in the same condition for twenty-four hours before the injury now sued for, the previous length of time for which it had existed was immaterial."

The case of Edwards v. Ottawa Riv. Nav. Co., 39 Up. Can. Q. B. 264, was an action against the defendant for negligence in the construction and management of their steamboat, by which sparks escaped from the funnel at the wharf, and the plaintiff's lumber and mills were burnt. The alleged negligence consisted in leaving the screens of the steamer open; and, on the part of the plaintiff, evidence was received, though objected to, that, on other occasions and at different times and places, the screens were open and cinders escaped. The presiding judge ruled that this evidence was admissible. Held, that such evidence was inadmissible to support the plaintiff's case, when it was tendered and received.

All the English and American cases bearing on the question were examined and discussed by Harrison, C. J., who, after stating the facts, says: " The declaration charges negligence by the defendants on a particular occasion and at a particular place, whereby, etc., and this the defendants deny. The only issue, therefore, for the determination of the jury was whether there was the negligence charged, on the occasion and at the place alleged, resulting in damage to some amount to the plaintiff. If, on the day and at the place in question, the screens were open and sparks escaped, one or more of which sparks set fire to the pile of lumber, there was such negligence and such damage as alleged, and the jury should find for the plaintiff. It could not assist the jury in coming to a determination on that issue to show that, on other days and at other places, the screens were open and sparks escaped. Such evidence would, in my opinion, be more likely to mislead than to assist the jury in arriving at a proper determination." So in this case, what was done or omitted to be done, at other times, is immaterial.

As the case is one of grave importance, it may not be inexpedient to consider the various legal questions, which may arise in its different aspects in the trial of the case hereafter.

II. The defendants are only responsible for neglect of duty. They are bound to use ordinary and common care and diligence to keep the premises and the usual passage-way to them safe for the access of all persons coming to them at seasonable hours by their invitation, express or implied, or for any purpose beneficial to them, they exercising ordinary care in so coming. If the premises are in any respect dangerous, they are bound to give such visitors notice, to enable them with ordinary care to avoid the danger. Knight v. P. & S. & P. Railroad Co., 56 Me. 235. Campbell v. Portland Sugar Co., 62 Me. 552. Elliot v. Pray, 10 Allen 378. Sweeny v. Old Colony & Newport Railroad Co., 10 Allen 369. Chapman v. Rothwell, 96 E. C. L. 168. John v. Bacon, 5 C. P. Law Rep. 437. Such are the general principles of law applicable to the case.

The counting room of the defendants was on the lower floor. This was the defendants' place of business. The editorial and composition rooms were in the second story. If there was an implied invitation, or permission merely, as a matter of accommodation, as the defendants' witnesses testified, the question would arise, if an invitation, whether such invitation could be implied after business hours and through the night, when the inhospitable absence of light would seem to negative such invitation.

III. But it is well settled, if the plaintiff was at the place where the injury was received by license merely, that the defendants would owe him no duty, and that he cannot recover. In Holmes v. N. E. R. W. Co., 4 Ex. L. R. 257 Bramwell, B., said: " If the plaintiff had gone where he did by mere license of the defendants, he would have gone there subject to all the risks attending his going." In the same case, Channel, B., remarked: ...