Cook v. Southern Ry. Co

• Decision Date: 10 July 1936
• Docket Number: No. 25310.,25310.
• Citation: 187 S.E. 274,53 Ga.App. 723
• Parties: COOK. v. SOUTHERN RY. CO. et al.
• Court: Georgia Court of Appeals

53 Ga.App. 723

187 S.E. 274

COOK.

v.SOUTHERN RY. CO. et al.

No. 25310.

Court of Appeals of Georgia,

Division No. 1.

July 10, 1936.

Rehearing Denied July 22, 1936.

Syllabus bp Editorial Staff.

MacINTYRE, J., dissenting.

Error from Superior Court, Telfair

County; Gordon Knox, Judge.

Suit by J. R. Cook, Jr., by next friend, etc., against Southern Railway Company and others. To review a judgment dismissing the petition on general demurrer, plaintiff brings error.

Affirmed.

Duncan Graham, of Vidalia, for plaintiff in error.

W. S. Mann, of McRae, for defendants in error.

Syllabus Opinion by the Court.

GUERRY, Judge.

The plaintiff, an eight year old boy, by next friend, brought suit for damages against two defendant railway companies, alleging that he was injured because of their negligence in having and maintaining along the right of way, but not at a public crossing, one foot from end of cross-ties of one of the defendants, a signal system whereby two certain iron pipes used as shifting rods ran from the tower at a crossing of the two railroads to a signal apparatus for control and operation of trains at a public street crossing in Helena, Ga., on the tracks of one of said railroads, some sixty yards west from the railroad crossing; which pipes were eighteen inches from the ground and were supported every twelve feet by metal supports resting on concrete bases and were uncovered and exposed for a distance of fifty feet, the same being covered except for said space. Whenever these pipes are used to change position of signals, they move a distance of six inches horizontally either backward or forward. The petition was brought in two counts and charged that the defendants were negligent inmaintaining this system with the pipes so uncovered and in not warning the plaintiff of the danger therein, in that the same constituted a hidden danger as to the plaintiff and others crossing over the same; that said fifty-foot space where the same was so uncovered was used by the public and had been for many years in the past, which use was with the implied permission of the defendants, in going to and from the residential portion of the city on one side of the railroad tracks to the business portion thereof on the other side, and in going to and from a store on the property of one of the railroads, a public street lying between the store and the right of way of this defendant whereon said signal system, which consisted of pipes from the tower to the apparatus, being worked by a man in the tower by means of a lever, which moved the pipes and consequently moved the signal arms, was located. The plaintiff alleged that he was going to the store to make a purchase, that many people daily used this fifty-foot space as a passageway in crossing, and that it was more convenient to the public, being a nearer and more direct route either to the store or to and from the business section to the residential section of the city. In the first count plaintiff charged that the defendants' agent moved said pipes, apparently in properly operating said signal system, at the time plaintiff stepped on the same in using this fifty-foot space to go to the store, and he was tripped and thrown against some sharp steel appliance a part of the system, and injured. In the second count the plaintiff charged that it had rained and said pipes were slippery, and when he stepped on the uncovered pipes he slipped and fell against said sharp instrument. He alleged that particularly as to a child of the plaintiff's age, said uncovered pipes constituted a hidden menace or peril, not apparent to one of the plaintiff's age. The petition as a whole was dismissed on general demurrer, and to this judgment the plaintiff excepts.

1. The elements of legal liability of the owner of premises for injuries occasioned to persons thereon vary according to whether the person injured was, at the time of the injury, a trespasser, a licensee, an invitee, express or implied, or a person standing in some special relation recognized by law. Mandeville Mills v. Dale, 2 Ga.App. 607, 58 S.E. 1060, 1061. Therefore, as a general rule, the owner of land is under no duty nor obligation to keep the same in a safe condition for the benefit of trespassers, intruders, idlers, bare licensees, or others who come upon it, not by any invitation, express or implied, but for their own pleasure, or to gratify their curiosity, however innocent or laudable their purposes may be. As to a licensee, such owner owes no duty as to the condition of the premises, unless imposed by statute, save that he should not knowingly let him run into a hidden peril or willfully cause him harm. The licensee enters upon the land at his own risk and enjoys the license subject to concomitant perils. Jones v. Asa G. Candler, Inc., 22 Ga.App. 717, 97 S.E. 112; Kinnebrew v. Ocean Steamship Co, 47 Ga.App. 704, 171 S.E. 385.

2. While an invitation may be implied by a dedication or may arise from known customary use of a portion of certain premises, and it may be inferred from conduct, if notorious or actually known to the owner or his authorized agent, or from any state of facts upon which it naturally and necessarily arises, still, in order to constitute one an invitee, there must be some mutual interest or benefit in the matter, and an invitation of the owner is implied by law where the person goes on the premises for the benefit, real or supposed, of the owner or occupant or in a matter of mutual interest, or in the usual course of business, or for the performance of some duty. Crossgrove v. Atlantic Coast Line R. Co, 30 Ga.App. 462, 118 S.E. 694.

(a) A "licensee" is a person who is neither a customer, nor a servant, nor a trespasser, and who does not stand in any contractual relation with the owner of the premises, and who is permitted, expressly or impliedly, to go thereon merely for his own interest, convenience, or gratification. The general test as to whether a person is an invitee or a licensee is whether the injured person at the time of the injury had present business relations with the owner of the premises which would render his presence of mutual aid to both, or whether his presence on the premises was for his own convenience, or on business with others than the owner of the premises. In the absence of some relation which inures to the benefit of the two, or to that of the owner, no invitation may be implied, and the injured person must be regarded as a licensee. Petree v. Davison-Paxon-Stokes Co, 30 Ga.App. 490, 492, 118 S.E. 697; Hyde v. Atlanta & W. P. R. Co, 47 Ga.App. 139, 169 S.E. 854.

(b) The plaintiff in this case was at best a licensee. It does not appear that he had any business or contractual relations with the railroad owner of the premises where he received his injury. The fact that he was to trade at a store on other premises of the same railroad would not serve to render him an invitee of the railroad on this particular portion thereof, when his admitted use thereof was for his own convenience as the most direct and nearest route to the store. The plaintiff's use of this passageway was alleged to have been customary and habitual, but was not shown to be for the mutual interest and benefit of himself and the defendants or of them alone.

3. But because the plaintiff was a licensee does not mean that he was under the facts of this case entitled to no more protection or diligence on the part of the defendants than a mere trespasser. In the case of a trespasser, liability arises only where the injury has been occasioned by the wilful and wanton negligence of the owner. No duty of anticipating his presence is imposed, even as to an infant trespasser, as was pointed out in Charleston & W. C. R. Co. v. Johnson, 1 Ga.App. 441, 57 S.E. 1064, and the duty to use ordinary care to avoid injuring him after his presence and danger are actually known, is, in point of fact, merely the duty not to injure him wantonly and willfully. However, in the case of a licensee there is a slightly higher duty on the part of the owner of the premises. He must not wantonly nor willfully injure the licensee, and since the presence of the licensee as a result of his license is at all times probable, some care must be used to prevent injuring him after his presence is known or reasonably should be anticipated. The fundamental concept of this class of cases, as in that of trespassers, is of a liability only for willful and wanton injury, but it is usually willful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be, or may reasonably be expected to be, within the range of a dangerous act being done or a hidden peril on one's premises. In Mandeville Mills v. Dale, supra, it was said as to a licensee, "ordinary care and diligence must be used to prevent injuring him after...