McPheters v. Loomis

• Decision Date: 08 June 1939
• Citation: 7 A.2d 437,125 Conn. 526
• Court: Connecticut Supreme Court
• Parties: McPHETERS v. LOOMIS et al.

7 A.2d 437

125 Conn. 526

McPHETERS v. LOOMIS et al.

Supreme Court of Errors of Connecticut.

June 8, 1939

Appeal from Superior Court, Middlesex County; Patrick B O'Sullivan, Judge.

Action by Albion J. McPheters, Sr., administrator of the estate of Albion J. McPheters, Jr., against James Lee Loomis and others for the death of the plaintiff's intestate allegedly caused by negligence of the defendants, brought to the superior court and tried to the jury. Verdict and judgment were for defendants, and the plaintiff appeals.

No error.

Isaac Nassau, of Hartford, for appellant.

James M. Carlisle and Lucius F. Robinson, both of Hartford, for appellees.

Argued Before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.

MALTBIE, Chief Justice.

The plaintiff's intestate, a boy about nine years old, was last seen alive while walking along the right of way of the New York, New Haven and Hartford Railroad Company in Middlefield. The Western Union Telegraph Company maintained a line of wires strung over poles, under an agreement with the railroad company giving to it the right to enter upon the premises for the purpose of maintaining or replacing the wires and poles, with a provision that the telegraph company should reimburse the railroad company, and save it harmless from, any damage done by the telegraph company or its employees. The telegraph company was engaged in replacing certain poles along the right of way. They had been unloaded from cars and left upon the ground. A pole was left on the embankment beside the railroad track, with one end in the ditch at its foot. Ten days later the body of the boy was found crushed underneath the pole, which was then lying in a nearly level position in the ditch. It was claimed by the plaintiff that adults and many children were accustomed to walk along the railroad or embankment opposite it at the place where the body of the boy was found and that the defendants should have known this. The defendants, on the other hand, claimed that the boy was a trespasser, that the railroad company maintained a ‘ No trespassing’ sign on its right of way, and that neither of them knew or had any reason to know that the boy was on the right of way or that adults or other children trespassed upon it. The action was brought against the trustees of the railroad company and the telegraph company. The jury rendered a verdict for the defendants and the plaintiff has appealed.

The question of substantive law presented is as to the correctness of the charge with reference to the liability of the telegraph company. The trial court charged quite fully as to the duties of the railroad company with reference to children trespassing upon its right of way, and the plaintiff raises no question as to that portion of the charge. The only instruction upon the issue of the liability of the telegraph company was as follows: ‘ Now passing on to the Western Union, the Western Union is in an analogous position to that of the railroad, and what I have said with reference to the railroad is applicable to it, when you consider the Western Union. In other words, this boy was a trespasser as to the Western Union; and the Western Union ordinarily owed the boy no duty; and the duty came into existence only if a nuisance existed, or if the Western Union was negligent in permitting a dangerous condition to remain upon its premises or premises of which it had use, if children were actually trespassing, and it knew of that fact or ought to have known of it.’

The plaintiff claims that the boy was not a trespasser as regards the telegraph company and that its liability was not, therefore, to be determined upon the same basis as that of the railroad company. Trespass to land is an unlawful invasion of another's right of possession. Avery v. Spicer, 90 Conn. 576, 579, 98 A. 135. Where one has merely an easement in the land of another such as did the telegraph company in this case, the act of a third person in unlawfully going upon the land does not constitute a trespass as regards the owner of the easement. Bernardo v. Hoffman, 109 Conn. 158, 161, 145 A. 884; Smith v. Slocomb, 11 Gray 280, 285,77 Mass. 280, 285; Osborne v. Butcher, 26 N.J.L. 308, 309; Dietrich v. Berk, 24 Pa. 470, 471; and see Gonchar v. Kelson, 114 Conn. 262, 271, 158 A. 545; Waterbury Trust Co. v. G. L. D. Realty Co., 121 Conn. 50, 52, 182 A. 466. This fact does not, however, establish error in the charge of the trial court. The broader issue presented is whether one who has an easement in land of another owes to a person who is a trespasser upon the land a higher duty to safeguard him from injury than does the owner himself.

The plaintiff relies upon our decision in Bernardo v. Hoffman, supra, 109 Conn. at page 161, 145 A. 884. That case, however, falls within the principle that the rule as to the restricted liability of a landowner to a trespasser does not apply where neither party has a superior right in the land upon which the injury occurs. Buckley v. Arthur J. Hickey Family Laundry Co., 261 Mass. 348, 350, 158 N.E. 769; Cox v. United States Coal & Coke Co., 80 W.Va. 295, 302, 92 S.E. 559, L.R.A.1918B, 1118; Daltry v. Media Electric Light, Heat & Power Co., 208 Pa. 403, 412, 57 A. 833; Id., 208 Pa. 414, 57 A. 1134; Restatement, 2 Torts. § 381. Some cases apply a like principle as between one who has a mere easement upon the land and one who is a trespasser upon it. Guinn v. Delaware & Atlantic Telephone Co., 72 N.J.L. 276, 278, 62 A. 412, 3 L.R.A.N.S., 988, 111 Am.St.Rep. 668; Humphrey v. Twin State Gas & Electric Co., 100 Vt. 414, 417, 139 A. 440, 56 A.L.R. 1011; Lipovac v. Iowa Railway & Light Co., 202 Iowa 517, 210 N.W. 573; Williams v. Springfield Gas & Electric Co., 274 Mo. 1, 11, 202 S.W. 1; Ferrell v. Durham Traction Co., 172 N.C. 682, 90 S.E. 893, L.R.A.1917B, 1291. In other cases the liability of the owner of the easement to a trespasser upon the land has been determined upon the same basis as that of the landowner himself. Robbins v. Athol Gas & Electric Co., 236 Mass. 387, 389,128 N.E. 417; Hafey v. Turner Falls Power & Electric Co., 240 Mass. 155, 157, 133 N.E. 107; Downes v. Elmira Bridge Co., Ltd., 41 A.D. 339, 58 N.Y.S. 628, 631; Hamakawa v. Crescent Wharf & Warehouse Co., 4 Cal.2d 499, 50 P.2d 803; Lindholm v. Northwestern Pacific R. Co., 79 Cal.App. 34, 40, 248 P. 1033; Waller v. Smith, 116 Wash. 645, 647, 200 P. 95.

Ordinarily a landowner is not liable to a trespasser upon his land for a failure to use care to safeguard him from injury due to conditions upon it. Wilmot v. McPadden, 79 Conn. 367, 375, 65 A. 157, 19 L.R.A.N.S., 1101; Salemme v. Mulloy, 99 Conn. 474, 480, 121 A. 870. However, under our law when the presence of a trespasser becomes known the landowner owes a duty to use ordinary care to avoid injuring him. Kalmich v. White, 95 Conn. 568, 571, 111 A. 845; Waselik v. Ferrie Construction Co., 114 Conn. 85, 87, 157 A. 642; Roy v. United Electric Rys. Co., R.I., 157 A. 428; Shiembob v. Ringling, 115 Conn. 62, 65, 160 A. 429. In Carlson v. Connecticut Co., 95 Conn. 724, 730, 112 A. 646, 649, we thus extended the rule of liability: ‘ But, if the owner or his servants know that the presence of trespassers is to be expected, then the common obligation of exercising reasonable care gives rise to the correlative duty of taking such precautions against injuring trespassers as a reasonable foresight of harm ought to suggest.’ In the case of children who are trespassers upon land, we have stated the principle in this way: The landowner ‘ is not ordinarily bound to anticipate and provide for the presence of trespassers since he may properly assume that they will not ordinarily be there. When, however, the owner knows or should know that children are likely to trespass upon a part of his land upon which he maintains a condition which is likely to be dangerous to them, he may be held liable for harm resulting to them therefrom.’ Wolfe v. Rehbein, 123 Conn. 110, 113, 193 A. 608, 609.

The basis of the restricted liability of a landowner to a trespasser upon his property is not that the trespasser, by his wrongdoing, has forfeited any right to recover for an injury he suffers, else the landowner would not be liable to him even under the circumstances we have stated. See Humphrey v. Twin State Gas & Electric Co., supra; 1 Street Foundations of Legal Liability, 155, note; Shiembob v. Ringling, supra, 115 Conn. 66, 160 A. 429. It rests on the fact that the landowner has dominion over the land and a higher right to its use than does the trespasser, and that consequently the trespasser is to be taken to have assumed the risk of conditions upon the property, Wilmot v. McPadden, suppra; Pastorello v. Stone, 89 Conn. 286, 289, 93 A. 529; Ehret v. Village of Scarsdale, 269 N.Y. 198, 208, 199 N.E. 56; while, on the other hand, the landowner has the right to assume, until he knows or should know to the contrary, that no one will enter upon his land without right and so in his use of the property is not chargeable with that reasonable anticipation of harm to others which in such a case as this is the basis of liability in negligence. Stoto v. Waterbury, 119 Conn. 14, 16, 174 A. 189; Fitzmaurice v. Connecticut R. & Lighting Co., 78 Conn. 406, 409, 62 A. 620, 3 L.R.A.N.S., 149, 112 Am.St.Rep. 159; Salemme v. Mulloy, supra, 99 Conn. at page 481, 121 A. 870. Both of these considerations apply with equal force to one who, though not the owner of the land, is using it under a grant or license from the owner. It is only when he knows or is chargeable with the knowledge of the likelihood of persons trespassing upon the property...