Escanaba Mfg. Co. v. O'Donnell

• Decision Date: 07 April 1914
• Docket Number: 2,437.
• Citation: 212 F. 648
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: ESCANABA MFG. CO. v. O'DONNELL.

212 F. 648

ESCANABA MFG. CO. v. O'DONNELL.

No. 2,437.

United States Court of Appeals, Sixth Circuit.

April 7, 1914

A. H Ryall, of Escanaba, Mich. (G. R. Empson, of Gladstone, Mich of counsel), for plaintiff in error.

H. J Rushton, of Escanaba, Mich. (N. C. Spencer, of Escanaba Mich., of counsel), for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

DENISON Circuit Judge.

The plaintiff below was, at the time of the accident, a girl 10 years of age. The manufacturing company, with its plant and storage space, occupied some 20 acres of ground in the city of Escanaba. Every day its firemen wheeled out the ashes from the boiler room and dumped them on its ash pile. This pile was approximately circular, 50 feet in diameter, and varying in shape and in height as the ashes accumulated or as they were occasionally taken away by cars on the adjacent railroad track. On the morning of this particular day, ashes had been wheeled out as usual, and, also as usual, the upper surface of the fresh ashes had cooled and whitened and did not look dangerous, while beneath the surface they were still very hot. The little girl, barefooted, undertook to walk over them, sank into the hot ashes, and was burned. For the resulting damages, this action was brought.

The case must, for most purposes, now be considered from the viewpoint of plaintiff's evidence and the most favorable inferences that can reasonably be drawn therefrom, and it should be noted that the girl was not a trespasser upon the general premises; the company's utmost contention is that she was a mere licensee. The factory was a wood-working plant, and fragments of wood of different kinds were continually scattered in all parts of the grounds. The neighborhood children, and this little girl among them, were in the habit of coming on the premises with baskets and picking up chips and other waste wood. This was with the knowledge and approval of the company; indeed, it was not without benefit to the company, for its own labor of keeping its premises properly clean was somewhat diminished. More or less of such waste wood was to be found upon the part of the premises lying alongside this ash pile, and the evidence of custom and acquiescence must be considered as extending to that precise locality. The girl's presence on the general premises and in this immediate locality was therefore fully justified. In addition, she testified that, as they were so picking up wood, the children were in the habit of playing on this ash pile, which formed a sort of a hill alongside their woodpicking ground, and that the company's manager frequently saw them playing there and had made no objection, but instead had seemed to approve by asking them if they were having a good time, and such questions as that.

The trial court submitted the case to the jury, a verdict for the girl was found, and the defendant company brings error. The chief complaint is that the case should not have been submitted, because the company was under no obligation to the girl, either to keep this place safe for her to walk upon or to warn her of the hidden danger. The plaintiff's counsel insisted that she was upon the ash pile by invitation; the defendant urged that the testimony tended to show nothing more than a license; and it is charged that it was error to submit the case on the mistaken theory, and to charge, as the court did:

'If the defendant permitted children to play or to be upon the ash heap, it was its duty either to put up some guard or warning, or to give a warning to the children of the danger that there existed, because a person cannot invite another into danger without becoming liable.'

This charge put upon the defendant the same burden of duty toward plaintiff as if it had expressly invited her; and, because of the distinction usually drawn between the owner's liability for injury to one who is on his premises merely by permission and his liability to one who is there by invitation, it follows that the charge was erroneous, unless the supposed conduct of defendant was tantamount to an invitation, or unless, under the special facts of this case, the usual distinction in measure of duty did not exist.

The charge, as a whole, including other parts not quoted, did not impose upon defendant the duty to guard or warn merely because plaintiff had been, on one occasion, permitted to play there; it required the jury to find that this playing had been accustomed and habitual, and in substance the stated duty was based on the hypothesis that the ash pile had, with the defendant's acquiescence, become the children's playground. With reference to a child of this age, both in the effect upon her mind and in the resulting exposure to peril, we are not sure that there is real difference between the kind and extent of acquiescence above recited and an express invitation; but we think the case may well be decided without touching that question. In Ellsworth v Metheney, 104 F. 119, 121, 44 C.C.A. 484, 51 L.R.A. 389, Judge (now Mr. Justice) Day, speaking for this court, had occasion to consider and apply the rule of liability for injury to a licensee, and it was held that where the owner of the premises,...