O'brien v. Union Freight R. Co.
| Decision Date | 22 June 1911 |
| Citation | 209 Mass. 449,95 N.E. 861 |
| Parties | O'BRIEN v. UNION FREIGHT R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
F. J. Daggett and F. P. Garland, for plaintiff.
J. L Hall, for defendant.
The court having ruled that if the plaintiff was a trespasser he could not recover, the case was submitted to the jury upon two possible views which they might take of the evidence first that he was an invitee, or second that he was a licensee. It is strongly urged by the defendant that as matter of law the plaintiff was not an invitee. Upon this point the case is not very clear, but we are of opinion that upon the evidence the question whether he was an invitee was for the jury as well as were the questions whether he was in the exercise of due care and whether the act of the engineer in throwing the ashes upon him was inconsistent with any duty owed by the defendant to the plaintiff as such invitee.
But what if he was merely a licensee? There was some conflict in the evidence as to the location of the engine at the time of the accident. The evidence for the plaintiff tended to show on the one hand that the engine was then on track No. 3 adjoining the 'traffic way,' where it was not customary to discharge ashes and where people were permitted to go to look after their goods and to carry them away from the cars; while the evidence for the defendant on the other hand tended to show that the engine was standing on the 'straight track' near the roundhouse, where it was customary to clean out the engine preparatory to putting it in the house. The distance between the two locations was nearly one hundred feet. The court ruled in substance that if the accident took place near the roundhouse as contended by the defendant, then the plaintiff was a trespasser and could not recover; but if it happened 'at the other place,' and 'under such circumstances that you can say it was something new, unusual and different, which was actively done, and done in a negligent way,' and in the 'traffic way * * * to which this plaintiff had been permitted to come, had been so accustomed to come, that anybody throwing things out into that way without looking could be said to be careless in so doing,' then the plaintiff, if using due care, was entitled to recover. We understand this to be a ruling that although the plaintiff was a mere licensee yet if the act complained of was done in an unusual place and in failure to take ordinary care then the plaintiff could recover.
Much of the law with reference to the duty owed to a mere licensee by the owner of land over which the licensee travels is well settled. So far as respects the condition of the land the licensee must take the land as he finds it. Knowlton, J., in Moffatt v. Kenney, 174 Mass. 311, 315, 316, 54 N.E. 850, 851. See, also, Zoebisch v. Tarbell, 10 Allen, 385, 87 Am. Dec. 660; Plummer v. Dill, 156 Mass. 426, 31 N.E. 128, 32 Am. St. Rep. 463, and cases cited. And the same principle has been applied in the case of machinery in action in the course of the licensee's business. Balch v. Smith, 7 H. & N. 742; Griffiths v. London & North-Western Ry., 14 L. T. (N. S.) 797; Batchelor v. Fortescue, 11 Q. B. D. 474; Tolhausen v. Davies, 57 L. J. Q. B. 395; s. c., 58 L. J. Q. B. 99; Larmore v. Crown Point Iron Co., 101 N.Y. 391, 4 N.E. 752, 54 Am. Rep. 718; Weitzmann v. Barber Asphalt Co., 190 N.Y. 452, 83 N.E. 477, 123 Am. St. Rep. 560.
In Batchelor v. Fortescue, while the deceased, a mere licensee, was standing upon a bank of earth watching the movements of a crane used in excavating, the crane swung over his head and by reason of the breaking of a chain a bucket attached to the chain fell upon him. It was held that although the evidence would justify a finding of negligence of the defendant, yet there was shown no duty on the part of the defendant to take due and reasonable care of the deceased, and a verdict was ordered by the trial court for the defendant. This verdict was affirmed by the Court of Appeals.
In Larmore v. Crown Point Iron Co. the defendant was operating a machine for raising ore from its mine. The machine consisted of an upright or mast in which a lever was inserted, and was worked by attaching horses to the lever by means whereof a bucket was raised and lowered. At the time of the accident the bucket was being lowered, and the lever being insecurely fastened was thrown out of its socket and flying rapidly around struck the plaintiff, a mere licensee. It was held in an able and lucid opinion that the defendant owed to the plaintiff no duty to use ordinary care to see that the lever was properly fastened, and a verdict which had been rendered in the trial court for the plaintiff was set aside.
In Weitzmann v. Barber Asphalt Co. a boy, a licensee, was struck upon the head by a barrel which suspended by a rope was being drawn from one part of the premises to another. It was held that the defendant did not own to the licensee the duty to take sufficient precaution to warn the plaintiff of the danger. As to trespassers and licensees the well settled rule is that the only duty of the owners or occupiers of the land is to abstain from inflicting intentional or wanton or willful injuries. See, also, Downes v. Elmira Bridge Co., 179 N.Y. 136, 71 N.E. 743.
The great weight of authority seems to be that as in the case of the land so in the case of appliances thereon where danger is not concealed, the owner or occupier of the premises owes no duty to a mere licensee to take proper precautions to protect him, but is answerable only for injuries inflicted wantonly or willfully. And this is so whether the licensee fall against the appliance or whether by reason of the lack of ordinary care of the owner to keep it in repair the appliance or some part of it strikes him.
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