McGehee v. Norfolk & S. Ry. Co.

• Decision Date: 18 March 1908
• Citation: 60 S.E. 912,147 N.C. 142
• Parties: McGEHEE v. NORFOLK & S. RY. CO. et al.
• Court: North Carolina Supreme Court

60 S.E. 912

147 N.C. 142

McGEHEE v. NORFOLK & S. RY. CO. et al.

Supreme Court of North Carolina

March 18, 1908

Clark C.J., and Hoke J., dissenting.

Appeal from Superior Court, Craven County; Lyon, Judge.

Action by F. C. McGehee against the Norfolk & Southern Railway Company and another. From an order overruling a demurrer to the complaint, defendants appeal. Reversed.

Where plaintiff shot at a wooden building on defendant's right of way, in which was stored dynamite, which was thereby exploded, plaintiff was a trespasser in so doing, even though he stood on the public highway when he fired the shot.

This action was heard upon the complaint and demurrer. Plaintiff alleged: (1) That the defendant Norfolk & Southern Railway Company, organized and existing according to law and at all the times herein mentioned, was engaged in operating railroads in said state and elsewhere; (2) that defendant J G. White & Co. is a foreign corporation, and at all times herein mentioned was engaged in constructing a railroad for the defendant Norfolk & Southern Railway Company from Newbern to Washington, N. C., as plaintiff is informed and believes; (3) that on or about the 14th day of May, 1907, the defendant wrongfully, unlawfully, and negligently permitted about 1,600 pounds of dynamite to be kept in a small wooden building along the line of its track and near one of the public roads of Craven county about one mile from the city of Newbern, without any notice or warning to the public that said wooden structure contained dynamite or other explosive matter; (4) that said wooden structure in which said dynamite was kept was in a public place where trains were passing, and where many people passed to and fro, and the house appeared to be an old abandoned shanty, without any evidence that it contained dynamite, and was a public nuisance to the citizens of Craven county and others along said railroad and said public road; (5) that the plaintiff, on the said 14th day of May, 1907, was an employé of the Western Union Telegraph Company, and was engaged in constructing a telegraph line for said company from Newbern, N. C., to Bayboro, N. C., and was living in a camp near to the said shanty which contained the said dynamite, without any knowledge on the part of the said plaintiff that the said shanty contained dynamite or other explosive matter; (6) that on the morning of the said 14th day of May, 1907, the plaintiff, with a companion of his, was engaged in shooting at a target, and on account of the negligence of the defendant in keeping dynamite stored in said shanty, without any warning to the public or to this plaintiff, and without guards, plaintiff shot at a knot hole of said shanty, when a terrific explosion followed, blowing the house to atoms, and causing portions of the house to be blown against and upon the plaintiff, striking him upon the head and arm and knee and across his stomach, severely wounding and injuring him, and knocking him unconscious and almost killing him, and causing him to be confined to the hospital for a long time, and to suffer great mental and physical pain and anguish, and to incur a doctor's bill of $_____, to his damage in the sum of $2,000. Whereupon etc. Defendants demurred, assigning as grounds of demurrer that the facts set out in the complaint did not constitute a cause of action for that, etc. His honor overruled the demurrer, and defendants excepted and appealed.

Moore & Dunn, for appellants.

D. E. Henderson and D. L. Ward, for appellee.

CONNOR J.

Taking the averments in the complaint as admitted to be true by the demurrer, two questions are presented: (1) Was there a breach of duty to the plaintiff on the part of the defendants? (2) Was it the proximate cause of the injury?

It is said that the demurrer admits negligence. The demurrer admits the facts set out, with such inferences to be drawn from them as are most favorable to plaintiff. The law prescribes the measure of duty which defendants owe to plaintiff upon the facts and the inferences to be drawn from them. A defendant cannot, by demurring, change the law. Stripped of immaterial verbiage, the plaintiff says: Defendants were engaged in constructing a railroad between the points named. They permitted about 1,600 pounds of dynamite to be kept in a small wooden building along the line of its track and near one of the public roads in Craven county, about one mile from the city of Newbern, without any notice or warning to the public that the building contained dynamite. The building was in a public place where trains were passing. The house appeared to be an old abandoned shanty. Plaintiff was an employé of the Western Union Telegraph Company, was engaged in constructing a telegraph line, and was living in a camp near the shanty in which the dynamite was stored, of which he had no knowledge. On the morning of the 14th of May, 1907, the plaintiff, with a companion, while engaged in shooting at a target, shot at a knot hole in the weatherboarding of the shanty, causing a terrific explosion, whereby he was injured, etc. Actionable negligence consists in a breach of duty to plaintiff. A public nuisance is actionable only when a private injury is sustained by plaintiff. "In order to sustain an action the plaintiff must state and prove facts sufficient to show what the duty is, and that the defendant owes it to him." Shepherd, J., in Emry v. Nav. Co., 111 N.C. 94, 16 S.E. 18, 17 L. R. A. 699. "It has been often pointed out that a person cannot be held liable for negligence, unless he owed some duty to the plaintiff, and that duty was neglected." Lane v. Cox (1897) 1 Q. B. D. L. R. 415. "The duty itself arises out of the various relations of life and varying obligations under different circumstances. In one case the duty is high and imperative; in another it is of imperfect obligation." In every case wherein negligence, causing injury, is alleged, it becomes necessary to inquire what relation plaintiff bears to defendant. It is impossible to ascertain whether the defendant owes any, and, if so, what duty to plaintiff, until the legal relation existing between them in respect to the cause and occasion of the damage is settled. To say that the storing of the dynamite in the place and manner alleged in the complaint is a public nuisance does not, in any degree, affect the question, or aid us in its settlement. For maintaining a public nuisance the defendant is liable to indictment. The citizen can sue only when he sustains special damage, different in kind from the public.

It is elementary that plaintiff had no cause of action against defendant for placing the dynamite in the shanty. He must establish some relation between defendant and himself from which a duty to him is imposed upon defendant. "The expression 'duty' properly imports a determinate person to whom the obligation is owing, as well as the one who owes the obligation. There must be two determinate parties before the relationship of obligor and obligee of a duty can exist." 1 Street, Foundations Leg. Liab. 94. The duty grows out of the relationship. What relationship existed between plaintiff and defendants at the time of, and in regard to, the conditions out of which the damage was sustained? Plaintiff had a right to pass along the public highway, and to use the highway as any other citizen. Defendant owed him the duty not to obstruct the highway or to place dangerous explosives so near thereto as to endanger his life or person. For any injury caused by a breach of this duty defendant was liable. Plaintiff had no right, while passing along the highway, to go upon defendant's premises, or to shoot at, or into, its houses. He was not in the employment of defendant, nor does he pretend that he occupied any relation to defendant making him a licensee, either express or implied. He says that he "was engaged in shooting a target." The case then comes to this: Defendants have stored on their right of way in the shanty to be used in constructing a railroad the quantity of dynamite named. The plaintiff commits a trespass upon the property by shooting into the house through a knot hole, not knowing the dynamite was stored therein. Conceding that storing the dynamite in the shanty, without giving notice, constituted a public nuisance, what duty did defendant owe plaintiff, a trespasser, upon its premises? It will be observed that he was not attempting to abate the nuisance. The defendants were engaged in constructing the railroad. Hence no question in regard to the right of the public to go upon the right of way is presented. It does not very clearly appear whether, when he shot at the knot hole, plaintiff was in the public highway or on the right of way. It is immaterial where he was standing. Assuming that he stood in the highway, it is manifest that in shooting at the knot hole he was as essentially a trespasser as if he had gone on the right of way, or premises, and struck the shanty with his pistol. It is clear that, in respect to the cause of the explosion, plaintiff was a trespasser. In 1 Street's Foundations of Legal Liab. 155, it is said: "When mischief happens to a trespasser by reason of the defective or dangerous condition of the premises upon which he trespasses, he is very properly held to assume the risk, and no recovery can be had against the keeper of those premises. As it is commonly, and somewhat more artificially, put, the implied duty to prevent harm from unsafe premises does not exist in favor of a trespasser." Zoebisch v. Tarbell, 92 Mass. 385, 87 Am. Dec. 660. The view which we find most favorable to plaintiff is thus stated: "The preferable view is believed to be that a party's liability to trespassers depends upon the former's contemplation of the likelihood of their presence on...