Elie v. Lewiston, A. & W. St. Ry

• Decision Date: 31 January 1914
• Citation: 91 A. 786,112 Me. 178
• Parties: ELIE v. LEWISTON, A. & W. ST. RY.
• Court: Maine Supreme Court

91 A. 786

112 Me. 178

ELIE

v. LEWISTON, A. & W. ST. RY.

Supreme Judicial Court of Maine.

Sept 1, 1914.

On Motion from Supreme Judicial Court, Androscoggin County, at Law.

Action by Romeo Elie, by his next friend, against the Lewiston, Augusta & Waterville Street Railway. There was a verdict for plaintiff, and defendant moved for a new trial. Motion granted, and new trial directed.

Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, HANSON, and PHILBROOK, JJ.

Newell & Skelton, of Lewiston, for the motion. McGillicuddy & Morey, of Lewiston, opposed.

BIRD, J. An action on the case to recover damages for injuries sustained by plaintiff, a child of the age of four years, in alighting from a moving ear of defendant The verdict was for plaintiff, and the defendant files its general motion for new trial.

The declaration alleges that the plaintiff was riding upon the platform of the car by the permission and invitation of the defendant. There was no pretense that plaintiff had paid his fare or intended to do so, and the contrary may be legitimately inferred from the evidence. Express invitation there was none. And it has been recently held by this court that:

"To come under an implied invitation as distinguished from mere license, the visitor must come for a purpose connected with the business in which the occupant is engaged, or which he permits to be carried on there. There must at least be some mutuality of interest in the subject to which the visitor's business relates, although the particular thing which is the object of the visit may not be for the benefit of the occupant." Stanwood v. Clancey, 106 Me. 72, 75, 75 Atl. 293, 294.

The rule has been otherwise stated as follows: The principle appears to be that invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using it. Bennett v. Railroad Co., 102 U. S. 577, 584, 585, 26 L. Ed. 235.

In the case before us there was no express permission, or license. Nor do we think an implied license is shown. There was evidence tending to show that other boys, of greater age, however, had stolen rides upon other cars of the defendant, going upon the platform at the time the car started on its return trip and jumping from the car while in motion at a point some 200 feet distant. But such acts were criminal (R. S. c. 52, § 7), and we should more than hesitate to hold that such acts on the part of others, even if brought to the knowledge of plaintiff, could be held such an inducement or holding out on the part of defendant as to give the plaintiff the rights either of one upon the cars by invitation, or of a licensee even. Barney v. Hannibal & St. Joseph R. R. Co., 126 Mo. 372, 392, 28 S. W. 1069, 26 L. R. A. 847; Chicago, etc., Ry. Co. v. Eininger, 114 Ill. 79, 85, 29 N. E. 196.

While it is true that, when a use has been so long-continued as to induce the public to believe that the owner invited such a use, a liability has been held to arise as from an implied invitation, in this case, assuming the requisite continuance, there could have been no such belief entertained by the public. See Nolan v. New York, etc., R. R. Co., 53 Conn. 461, 474, 4 Atl. 106; Hughes v. B. &amp M. R. R., 71 N. H. 279, 51 Atl. 1070, 93 Am. St. Rep. 518.

The plaintiff was a mere trespasser. As such, he was protected only against the wanton...