Holcombe v. Buckland

• Decision Date: 18 August 1942
• Docket Number: No. 4955.,4955.
• Citation: Holcombe v. Buckland, 130 F.2d 544 (4th Cir. 1942)
• Parties: HOLCOMBE v. BUCKLAND et al.
• Court: U.S. Court of Appeals — Fourth Circuit

130 F.2d 544 (1942)

HOLCOMBE v. BUCKLAND et al.

No. 4955.

Circuit Court of Appeals, Fourth Circuit.

August 18, 1942.

Homer A. Holt, of Charleston, W. Va. (Wm. T. O'Farrell and Brown, Jackson & Knight, all of Charleston, W. Va., on the brief), for appellant.

F. N. Bacon, of Fayetteville, W. Va. (S. C. Higgins, Jr., and Mahan, Bacon & White, all of Fayetteville, W. Va., on the brief), for appellees.

Before SOPER and NORTHCOTT, Circuit Judges, and TIMMERMAN, District Judge.

SOPER, Circuit Judge.

Separate suits brought by Clay Wilson Buckland and Charles Doss against George C. Holcombe to recover damages for personal injuries were consolidated and tried together in the District Court and resulted in judgments of $7,000 for Buckland and $5,000 for Doss. The defendant appealed, complaining that the District Judge erred in refusing to direct a verdict in his favor and in refusing certain instructions offered by him for submission to the jury.

The facts with respect to the accident that caused the injuries were the same in both cases. The plaintiffs were employees of the Hughes-Foulkrod Company which had a contract with the owner for the construction of the brick work and roofing of the building in which, before completion, the accident occurred. Holcombe, the defendant, had another contract with the owner for the installation of the structural steel and the installation of a monorail track along one side and both ends of the building to be used in the support and movement of a small steel cage. The building was 460 feet long, 100 feet wide and 66 feet high to the eaves. The track extended 660 feet and was supported at a distance of 30 inches from the eaves outside the building. The cage was designed for the carriage of men engaged in washing windows that comprised 40 per cent of the surface of the walls. The track consisted of 33 rails, 20 feet in length, joined together end to end. Each joint was formed by two plates, that is, a fishplate on top consisting of a small flat piece of metal fastened by bolts to the rails to prevent vertical displacement, and a cog connection beneath to prevent lateral displacement. The cage was secured to trolleys that ran on the track. It could be raised or lowered by the operation of the lever inside and could be moved parallel to the walls by a person inside pushing against the wall, or by means of a rope pulled by a person on the ground.

The defendant had completed the monorail and cage, and it had been used with his knowledge before the accident took place. Later, three of the rails were removed by the defendant to enable him more conveniently to perform other construction work under his contract. Subsequently, he replaced the rails but failed to replace the fishplate at one of the joints because it could not be found. During the period when the rails were removed, the defendant placed a rope barrier to prevent the cage from running off the track at the breach; but this barrier was removed after the rails were replaced and before the accident happened. At the time of the accident, the equipment, consisting of track and cage, had been left by the defendant in an incomplete state, and construction work was still being performed by him and others.

On June 6, 1941, while the track was in this defective condition, the plaintiffs were using the cage under orders of their employer in washing the walls of the building. While doing so the cage fell by reason of the absence of the fishplate and the plaintiffs suffered the injuries complained of. It will have been noticed that the plaintiffs were not employees of the defendant, but of another contractor engaged by the owner to perform construction work entirely independent of that which the defendant was under contract to erect. The circumstances under which the plaintiffs used the cage have therefore an important bearing upon the legal questions involved in the case. There is no doubt that the defendant knew that the plaintiff and other persons not in his employ were making use of the cage for their own purposes, and permitted them to do so while the track was in the faulty condition described. Employees of the Telephone Company used the cage to install a cable on June 2, 3 and 4, passing over the weak point several times without injury. The plaintiffs themselves had also used the cage on days immediately prior to the accident and had crossed the weak point a number of times before the cage fell with them on June 6, when it was stopped near the defective joint. While there was some testimony to the contrary, the evidence of the plaintiffs clearly showed that they had no knowledge of the defective condition of the rail, and that the defect was not easily observable and that they were not warned that it was dangerous to use the equipment. It is not disputed that the defendant had knowledge that the fishplate was missing and that the track was therefore not in proper condition to be used.

The position of the defendant with respect to the crucial question in the case is that the plaintiffs were at most bare licensees in the use of the cage and monorail, and therefore the defendant owed them no duty to maintain the equipment in a safe condition for their use and convenience. The defendant refers to 38 Am.Jur., Negligence, § 104, citing Sohn v. Katz, 112 N. J.L. 106, 169 A. 838, 90 A.L.R. 880, as authority for the rule that a contractor or sub-contractor engaged in work upon a building, as well as the owner thereof, is entitled to invoke the rule limiting the obligation to look out for the safety of a licensee:

We are referred to a number of West Virginia decisions in which little or no distinction is made between the duty or obligation of an occupant of premises to a trespasser and his duty to a bare licensee. In Perryman v. Mankin Lumber Co., 113 W.Va. 848, 853, 169 S.E. 462, 464, the court cited with approval the following passage from Converse v. Walker, 30 Hun, N.Y., 596, 600: "`All the cases in the books in which a party is sought to be charged on the ground that he has caused the * * * place * * * or suffered it to be in a dangerous condition, whereby accident or injury has 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. * * * 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 at 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 go there solely for their own convenience or pleasure, and who are not either expressly invited to enter or induced to come upon the grounds for the purpose for which the premises are appropriated and occupied, 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.' Accord: Sherman & Redfield on Negligence (6th Ed.) § 705."

In Dickinson v. New River & Pocahontas Consol. Coal Co., 76 W.Va. 148, 85 S. E. 71, the court went so far as to say that the occupant of premises owes no duty to trespassers or bare licensees except abstention from intentional injury, and that in the absence of maliciousness or intentional injury the decisions of the State recognize no distinction between acts of commission or omission on the part of the owner of the premises, whereby injury to such persons is occasioned. See, also, Ross v. Kanawha & Michigan Ry. Co., 76 W.Va. 197, 85 S.E. 180.

But these cases give only an imperfect view of the West Virginia decisions on this branch of the law. The Supreme Court of West Virginia has not altogether ignored the distinction sometimes drawn between mere passive neglect in the care of premises upon which a licensee has been permitted to enter and actual misconduct or neglect bringing about his injury after his arrival. See, Woolwine's Adm'r v. C. & O. R. Co., 36 W.Va. 329, 333, 335, 336, 15 S.E. 81, 16 L.R.A. 271, 32 Am.St.Rep. 859; and see also the cases cited in Am.Jur. on Negligence, § 104, to which, as shown above, the defendant has referred for another purpose. Judge Lurton pointed out this distinction quite clearly in Felton v. Aubrey, 6 Cir., 74 F. 350, 358, 359, in the following passage: "It seems to us that many of the American cases which we have cited fail to draw the proper distinction between the liability of an owner of premises to persons who sustain injuries as a result of the mere condition of the premises and those who come to harm by...