Brigman v. Fiske-Carter Const. Co.

• Decision Date: 31 December 1926
• Docket Number: 556.
• Citation: 136 S.E. 125,192 N.C. 791
• Parties: BRIGMAN v. FISKE-CARTER CONST. CO. (two cases).
• Court: North Carolina Supreme Court

136 S.E. 125

192 N.C. 791

BRIGMAN v. FISKE-CARTER CONST. CO. (two cases).

No. 556.

Supreme Court of North Carolina

December 31, 1926

Appeal from Superior Court, Buncombe County; Harding, Judge.

Separate actions by Lucy Brigman and by W. B. Brigman against the Fiske-Carter Construction Company consolidated and tried together. Judgment for plaintiffs, and defendant appeals. No error.

The plaintiff, Lucy Brigman, is the wife of W. B. Brigman and instituted an action for damages against the defendant. The husband, W. B. Brigman, also instituted an action against the defendant to recover for loss of services of his said wife and expenses incurred by reason of her injury. Both cases were consolidated and tried together.

Plaintiff W. B. Brigman, is a carpenter, and the defendant operates a bleaching plant about three miles east of the town of Biltmore.

There was a road or driveway upon the premises, and the plaintiff W. B. Brigman, "drove onto the defendant's property and parked his automobile in the parking space, where he had on two former occasions seen other automobiles parked, and where two automobiles were then parked." His car was parked about 15 or 20 feet from the road.

The plaintiff, W. B. Brigman, testified:

"I went up there because the superintendent had told me before that I might have a job, or there might be an opening in two or three weeks, and I went up there to see about the job. *** I had business with the Fiske-Carter Construction Company. I had business with the Fiske-Carter Construction Company each time, and also this time. *** The superintendent told me to come back the second trip. I had made one trip up there, and he told me to come back the second trip and there would be an opening for me; my wife and son went with me; that is the reason they were along."

The male plaintiff parked his car and his wife and son remained in the car, while he went in search of the superintendent in order to see about getting work in response to the invitation of the superintendent, given to him at some previous time.

The plaintiff, Mrs. Brigman, testified:

"After he (husband) left I saw a little truck come up the road there, went out toward the main office at the upper end of the works; that was in the direction that my husband went; I next saw a truck come backing back on the right; when I saw it coming back I threw up my hands; it looked like it was coming right straight back into my car, and I threw up my hands and hollowed; I did not have time to get out of the car, and I sat still and threw up my hands and hollowed as loud as I could hollow, and when he struck the door it came through 6 or 8 inches, *** and the car came back and broke the door *** and struck my ankle joint *** and ruined it. *** I did not have any warning or notice that the truck was going to back out until I saw it coming; it was 4 or 5 feet from me, I guess when I saw it backing out of the road. It was a little parking place there. It is where the employees park their cars."

The plaintiff, Mrs. Brigman, further testified:

"My car was standing in the little parking place; the truck came right in front of me; I paid no attention to it on account of looking at the drilling; there was terra cotta piping on the truck, piled up; the driver said he was not paying any attention to where he was backing."

Issues of negligence, contributory negligence, and damages were submitted to the jury and answered in favor of the plaintiff. The damage awarded to Mrs. Brigman was $2,000, and to her husband the sum of $150. From the judgment upon the verdict, the defendant appealed.

Thomas S. Rollins, of Asheville, for appellant.

Cocke & Cocke and Mark W. Brown, all of Asheville, for appellee.

BROGDEN J.

The question is this: What duty did the defendant owe the plaintiff, Lucy Brigman, under the circumstances disclosed by the evidence?

The defendant contends that the plaintiff, Lucy Brigman, was a trespasser or a mere permissive licensee and relies upon the principle of law announced in the case of Sweeny v. Old Colony R. R., 10 Allen (Mass.) 368, 87 Am. Dec. 644, which is thus stated:

"In order to maintain an action for an injury to person or property by reason of negligence or want of due care, there must be shown to exist some obligation or duty towards the plaintiff, which the defendant has left undischarged or unfulfilled. This is the basis on which the cause of action rests. There can be no fault, or negligence, or breach of duty, where there is no act, or service, or contract, which a party is bound to perform or fulfill. All the cases in the books, in which a party is sought to be charged on the ground that he has caused a way or other place to be encumbered or suffered it to be in a dangerous condition, whereby accident and injury have been occasioned to another, turn on the principle that negligence consists in doing or omitting to do an act by which a legal duty or obligation has been violated. Thus a trespasser who comes on the land of another without right cannot maintain an action, if he runs against a barrier or falls into an excavation there situated. The owner of the land is not bound to protect or provide safeguards for wrongdoers. So a licensee, who enters on premises by permission only, without any enticement, allurement, or inducement being held out to him by the owner or occupant, cannot recover damages for injuries caused by obstructions or pitfalls. He goes there as his own risk, and enjoys the license subject to its concomitant perils. No duty is imposed by law on the owner or occupant to keep his premises in a suitable condition for those who come there solely for their own convenience or pleasure, and who are not either expressly invited to enter or induced to come upon them by the purpose for which the premises are appropriated and occupied, or by some preparation or adaptation of the place for use by customers or passengers, which might naturally and reasonably lead them to suppose that they might properly and safely enter thereon."

In that case, the plaintiff was injured while crossing the defendant railroad as a licensee, "on a private way," leading from South street to Federal street, in Boston. The defendant had made a plank crossing and kept a flagman there, partly to protect their own property and partly to protect the public. The plaintiff approached the crossing with a horse and wagon loaded with empty beer barrels. The flagman stopped him, and then indicated that it was safe for him to cross. As he was crossing, a box car, pushed by an engine, struck him and broke both of his legs. The Sweeny Case has been cited and approved in this state in the following cases: Quantz v. Railroad, 137 N.C. 136, 49 S.E. 79; Monroe v. Railroad, 151 N.C. 374, 66 S.E. 315, 27 L. R. A. (N. S.) 193; Muse v. Railroad, 149 N.C. 443; Briscoe v. Lighting & Power Co., 148 N.C. 403, 62 S.E. 600, 19 L. R. A. (N. S.) 1116; Money v. Hotel Co., 174 N.C. 508, 93 S.E. 964, L. R. A. 1918B, 493, and perhaps other cases.

In authoritative decisions of this and other jurisdictions, the degree of care to be exercised by the owner of premises to a person coming upon the premises depends, in the last analysis, upon the attendant facts and circumstances. Thus, the measure of care due by an owner of premises varies with respect to whether the person upon the premises is a trespasser, a bare or permissive licensee, merely for his own convenience, pleasure, or curiosity, or upon the premises by virtue of some invitation or inducement from the owner, either express or implied. The general rule is that a trespasser or permissive or bare licensee upon the property of another cannot recover for defects, obstacles, or pitfalls upon the premises, unless the injury shall result from willful or wanton negligence. Quantz v. Railroad, 137 N.C. 136, 49 S.E. 79; Peterson v. Railroad, 143 N.C. 260, 55 S.E. 618, 8 L. R. A. (N. S.) 1240, 118 Am. St. Rep. 799; Briscoe v. Power Co., 148 N.C. 396, 62 S.E. 600, 19 L. R. A. (N. S.) 1116; Bailey v. Railroad, 149 N.C. 169, 62 S.E. 912; Monroe v. Railroad, 151 N.C. 374, 66 S.E. 315, 27 L. R. A. (N. S.) 193; Money v. Hotel Co., 174 N.C. 508, 93 S.E. 964, L. R. A. 1918B, 493; Jones v. Bland, 182 N.C. 70, 108 S.E. 344, 16 A. L. R. 1383.

Upon the other hand, if a person enters upon the premises of another by reason of express or implied invitation, the owner is bound to exercise ordinary care for his safety. In discussing this aspect of the law, Bigelow, C.J., in the Sweeny Case, supra, says:

"The true distinction is this: A mere passive acquiescence by an owner or occupier in a certain use of his land by others involves no liability; but if he directly or by implication induces persons to enter on and pass over his premises, he thereby assumes an obligation that they are in a safe condition, suitable for such use, and for a breach of this obligation he is liable in damages to a person injured thereby." Whitley v. Railroad, 122 N.C. 987, 29 S.E. 783; Morrow v.

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