Baltimore & Ohio Southwestern Railroad Company v. Slaughter

• Decision Date: 13 November 1906
• Docket Number: 20,874
• Citation: 79 N.E. 186,167 Ind. 330
• Court: Indiana Supreme Court
• Parties: Baltimore & Ohio Southwestern Railroad Company v. Slaughter

79 N.E. 186

167 Ind. 330

Baltimore & Ohio Southwestern Railroad Company v. Slaughter

No. 20,874

Supreme Court of Indiana

November 13, 1906

From Clark Circuit Court; Harry C. Montgomery, Judge.

Action by William P. Slaughter against the Baltimore & Ohio Southwestern Railroad Company. From a judgment on a verdict for plaintiff for $ 500, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p 590.

Affirmed.

Edward Barton and Charles L. Jewett, for appellant.

L. A Douglass and H. W. Phipps, for appellee.

OPINION

Gillett, J.

According to appellee's complaint, appellant carelessly and negligently left within the traveled way of a farm crossing, and as an obstruction to the free use of the same, a hand-car, having upon it tools, tin dinner buckets, and clothing, and, as a result of the negligence charged, one of the animals--a mule--composing the team which appellee was driving along said way and across said track, became frightened at the hand-car and ran away, throwing appellee out of his wagon and injuring him. Appellant, having been defeated in the trial court, prosecutes this appeal, and by its first assignment of error draws in question the propriety of the ruling of the court below in overruling a demurrer to the complaint.

It is contended by appellant's counsel that, so far as the complaint shows, appellee was a bare licensee, and that, having availed himself of the privilege of using the crossing, he was bound to accept it as he found it; or, in other words, that appellant could not properly be charged with negligence in having the car within the way.

The allegations of the complaint concerning appellee's authority to use the crossing are as follows: "That said part of said railroad which runs through said Clark county extends from the city of New Albany to the city of North Vernon, Indiana; that at a point on said line of road, at a point about five miles northeast of said city of New Albany, Indiana, and about three hundred yards northeast of what is called and known as the "K. and L." cement mills, defendant had, before November --, 1903, constructed a private wagon-road crossing of its said railroad track at said point, and which said crossing was then and there for the use and benefit of the owners of the adjoining lands on opposite sides of said railroad track at said point, and for their tenants, and for all others who might have occasion to cross over the same in the use of said lands aforesaid; that said crossing was on said day properly constructed by fastening planks eight feet long to the ties in said track and filling in between them with broken stone, and defendant had also constructed approaches, about thirty feet in length and not to exceed ten feet in width, by throwing up earth, in the form of embankments, and covering them with broken stone; that on said day plaintiff was a tenant of the person who owned the adjoining lands on either side of said track at said crossing, and had been for more than one year, and had on many occasions before said day used said crossing in the prosecution of his said work as tenant; that he cultivated said adjoining lands as farming lands as such tenant, and on said day was entitled, as such tenant, to use said crossing with wagons and teams in the prosecution of his said work; * * * that about 5 o'clock in the afternoon of said day said plaintiff was lawfully driving a team consisting of one mule and one horse, attached to a two-horse wagon, from one portion of his said farm to another on the opposite side of said track of defendant, and in so doing had occasion to drive over and upon said crossing." In their statement of the contents of the complaint, appellant's counsel fully admit that it appears that appellee was a tenant of the adjacent farm, and that he went upon the crossing in the prosecution of his farm work.

It is doubtless the rule that a bare licensee who goes upon the premises of another for some purpose with which the owner or occupant has no concern, and without any enticement, allurement, or inducement being held out to him by the owner or occupant, assumes the perils arising from defects existing in the premises. Within this class of cases are Lingenfelter v. Baltimore, etc., R. Co. (1900), 154 Ind. 49, 55 N.E. 1021, and Cannon v. Cleveland, etc., R. Co. (1902), 157 Ind. 682, 62 N.E. 8.

Putting aside all questions as to the effect of the act of April 8, 1885 (Acts 1885, p. 148, § 5320 et seq. Burns 1901), we are nevertheless of opinion that the facts charged do not make out a case in which appellee's entry upon the railroad was simply not opposed and prevented. While it is true that it does not appear that the intent of the company in respect to the construction and maintenance of the crossing was ever communicated to anyone, or that appellee acted upon the assumption that the crossing was designed for his use, yet, taking the subjective intent in respect to the purpose of its construction and maintenance, coupled with the fact that the planking of the space between the rails and the building of the long approaches on either side tended to show objectively what the intent was, and adding to this the frequent prior user of the way by appellee, and we have a case wherein it appears to us that it would be contrary to good morals to permit appellant in effect to shift its ground, after the injury and after it had been haled into court, by asserting that appellee had ventured upon the crossing without invitation and at his own risk. Not to refine too much, it seems to us not unreasonable that the company should be subjected in the circumstances to the consequences of having extended an invitation which had been acted on.

In Indiana, etc., R. Co. v. Barnhart (1888), 115 Ind. 399, 16 N.E. 121, this court said: "When a person has a license to go upon the grounds or the enclosure of another, he takes the premises as he finds them, and accepts whatever perils he incurs in the use of such license. But when the owner or occupant, by enticement, allurement, or inducement, whether express or implied, causes another to come upon his lands, he then assumes the obligation of providing for the safety and protection of the person so coming, and for any breach of duty in that respect such owner or occupant becomes liable for any injury which may result to the person so caused to come onto his lands. The enticement, allurement, or inducement, as the case may be, must be the equivalent of an express or implied invitation. Mere acquiescence in the use of one's land by another is not sufficient. Such an implied invitation may be inferred from some act or line of conduct, or from some designation or dedication. This general doctrine was affirmed in the case of Evansville, etc., R. Co. v. Griffin [1885], 100 Ind. 221, 50 Am. Rep. 783, and is well supported by a long line of authorities. Sweeney v. Old Colony, etc., Railroad [1866], 10 Allen 368, 87 Am. Dec. 644; Smith v. London, etc., Docks Co. [1868], L. R. 3 C. P. 326; Carleton v. Franconia Iron, etc., Co. [1868], 99 Mass. 216; Toledo, etc., R. Co. v. Grush [1873], 67 Ill. 262, 16 Am. Rep. 618; Doss v. Missouri, etc., R. Co. [1875], 59 Mo. 27, 21 Am. Rep. 371; Elliott v. Pray [1866], 10 Allen 378, 87 Am. Dec. 653; Stratton v. Staples [1871], 59 Me. 94; Railroad Co. v. Hanning [1872], 82 U.S. 649, 15 Wall. 649, 21 L.Ed. 220; Bennett v. Louisville, etc., R. Co. [1881], 102 U.S. 577, 26 L.Ed. 235; Hayes v. Michigan Cent. R. Co. [1884], 18 Reporter 193. See Lary v. Cleveland, etc., R. Co. [1881], 78 Ind. 323, 41 Am. Rep. 572; Pittsburgh, etc., R. Co. v. Bingham [1876], 29 Ohio St. 364; Jeffersonville, etc., R. Co. v. Goldsmith [1874], 47 Ind. 43; Hargreaves v. Deacon [1872], 25 Mich. 1; Nicholson v. Erie R. Co. [1870], 41 N.Y. 525; Durham v. Musselman [1827], 2 Blackf. 96, 18 Am. Dec. 133; Hounsell v. Smyth [1860], 97 Eng. C. L. 731; Gillis v. Pennsylvania R. Co. [1868], 59 Pa. 129, 98 Am. Dec. 317; Southcote v. Stanley [1856], 1 H. & N. 247; Bolch v. Smith [1862], 7 H. & N. 736; Lygo v. Newbold [1854], 24 Eng. L. & Eq. 507; Burdick v. Cheadle [1875], 26 Ohio St. 393, 20 Am. Rep. 767; Hardcastle v. South Yorkshire R., etc., Co. [1859], 4 H. & N. 67."

The case as pleaded contains some of the elements of a dedication, and while we would not be understood as applying that doctrine to a private use, yet the consideration is not without value in determining whether it is just to hold that appellee occupied no higher plane of right, as respects negligence, than a mere trespasser. In Bennett v. Louisville, etc., R. Co., supra, we find the court observing: "The deceased, when injured, was using the premises for some of the very purposes for which they had been appropriated, and to which they had, so to speak, been dedicated by the owner." An essentially similar observation is to be found in Indiana, etc., R. Co. v. Barnhart, supra. But the word "invitation," to which the cases on the subject under consideration so often refer, includes, both in its lexicographical and its legal sense, not only an actual bidding, but also an allurement or enticement. While an invitation may not, at least in most circumstances, grow out of mere passivity as respects the condition of the premises, yet the cases abundantly justify the assertion that where an owner constructs a way over his premises in such a manner as apparently to be for the use of certain persons, with the intent that they should use it, and they continue to enjoy it for a considerable period of time, he owes to them a duty to exercise ordinary care for their safety while pursuing the privilege, so far as his own acts are concerned, and this is especially true as to a new and unapprehended danger.

In Corby v. Hill (1858), 4 C. B. ...