Metcalfe v. Cunard S. S. Co.
| Decision Date | 04 May 1888 |
| Citation | 147 Mass. 66,16 N.E. 701 |
| Parties | METCALFE v. CUNARD S.S. Co., Limited. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J.E. Cotter and C.F. Jenney, for plaintiff.
OPINIONThe evidence in this case was sufficient to authorize a verdict for the plaintiff, and the justice of the superior court erred in directing a verdict for the defendant. The plaintiff was rightfully upon said steam-ship, under such circumstances as to entitle him to recover for injuries caused by the negligence of the defendant. Smith v. Dock Co., L.R. 3 C.P. 326. The owner or occupant of property is liable in damages to those coming upon his property, using due care upon any business proper to be transacted there, for an injury occasioned by the owner's negligence or that of his servants or agents. It is immaterial whether the business is that of the owner or occupant, or is with other persons rightfully on the premises. The owner and occupant of property is also liable for injuries received through or in consequence of its negligence by a person in the exercise of due care coming upon his property by his invitation or inducement, although upon no business connected with the premises, or with its occupants. Sweeny v. Railroad Co., 10 Allen, 368, 377; Corby v. Hill, 4 C.B (N.S.) 556. It is submitted that the plaintiff was upon the defendant's steam-ship for the purpose of properly transacting business thereon with an official in employ of defendant, and also by the invitation and inducement of the defendant. The conduct and acts of the officer, and all the attendant circumstances, induced the plaintiff to believe that the place where he went was a proper place for him, and invited him to go there. It is not necessary to prove an express invitation. Smith v. Dock Co., ubi supra; White v. France, 2 C.P.Div. 308; Wilton v Railroad Co., 107 Mass. 108; McKone v. Railroad Co., 51 Mich. 601, 17 N.W. 74; Stratton v. Staples, 59 Me. 95; Axford v. Prior, 14 Wkly.Rep. 611; Low v. Railway Co., 72 Me. 313; Railway Co. v. Slattery, 3 App.Cas. 1155; Powers v. Harlow, 53 Mich. 507, 19 N.W. 257; Sweeny v. Railroad Co., ubi supra; Corby v. Hill, ubi supra; Carleton v. Steel Co., 99 Mass. 216; Warren v. Railroad Co., 8 Allen, 227. There was evidence for the jury that the man who met the plaintiff as he stepped on board of the vessel was a duly-authorized officer and agent of the defendant. The evidence was sufficient to warrant the inference that he was the agent of the defendant, and acting within the scope of his authority. Newman v. Steam-Ship Co., 113 Mass. 362. There was evidence for the jury that the plaintiff was in the exercise of due care, and that the defendant was negligent. The defendant's officer and agent must have known of the danger that would be incurred by the plaintiff if he went where he directed him to go, and there was another and safe way of access to the place where the plaintiff desired to go, which it was the duty of the defendant's officer and agent to point out to the plaintiff.
Geo. Putnam and W.L. Putnam, for defendant.
It was for the plaintiff to prove that the defendant was negligent, and that its negligence caused the injury. Simply proving that he was injured is not sufficient. Riley v. Railroad Co., 135 Mass. 292; Corcoran v. Railroad Co., 133 Mass. 507; Wakelin v. Railroad Co., 12 App.Cas. 41. We respectfully submit (1) that the plaintiff was a trespasser; (2) that even if he was a licensee, we were not guilty of any breach of duty towards him; (3) that he certainly was not entitled to any higher rights than those of a mere licensee; (4) that even if the circumstances under which he came entitled him to better protection than we afforded him, his own lack of caution so contributed to the injury that he cannot recover. See case of Eaton v. Railroad Co., 57 N.Y. 382. And compare Hickey v. Railroad Co., 14 Allen, 429, 433. The plaintiff, being a trespasser, cannot recover without showing that willful injury was inflicted on him by the defendant. Severy v. Nickerson, 120 Mass. 306; Johnson v. Railroad, 125 Mass. 75; Wheelwright v. Railroad Co., 135 Mass. 225; Wootton v. Dawkins, 2 C.B. (N.S.) 412; Lary v. Railroad Co., 78 Ind. 323. Even if the plaintiff was not a mere trespasser, he was at best only a licensee, and as such was not entitled to any protection which the defendant failed to give him. The rights of a licensee are defined by the Court of Queen's Bench in the case of Gallagher v. Humphrey, 10 Wkly.Rep. 664. The case of Corrigan v. Refinery, 98 Mass. 577, illustrates the same principle. Such is the case of Driscoll v. Lime Co., 37 N.Y. 637, in which the plaintiff was injured by the defendants firing off a blast near him, while he was using a much-frequented path over the defendants' land. In the following cases it was held that the land owner was not liable to a licensee for falling into an unguarded trap-door or elevator well: Zoebisch v. Tarbell, 10 Allen, 385; Sullivan v. Waters, 14 Ir.Com.Law, 460; Parker v. Publishing Co., 69 Me. 173; Pierce v. Whitcomb, 48 Vt. 127; Dwyer v. Steam-ship Co., 17 Blatchf. 472, 4 F. 493; Victory v. Baker, 67 N.Y. 366; Kohn v. Lovett, 44 Ga. 251. Or into a well or precipice left unguarded in a field over which the public were permitted to pass. Howland v. Vincent, 10 Metc. 371; Galligan v. Manufacturing Co., 143 Mass. 527, 11 N.E. 171; Railroad Co. v. Griffin, 100 Ind. 221; Morgan v. Railroad Co., 7 Fed.Rep. 78; Hargreaves v. Deacon, 25 Mich. 1; Gillespie v. McGowan, 100 Pa.St. 144. In the following cases it was held that the land owner was not liable to a licensee for injuries resulting from defectiveness of his machinery: Batchelor v. Fortescue, 11 Q.B.Div. 474; Larmore v. Iron Co., 101 N.Y. 391, 4 N.E. 752. Or from an unguarded shaft. Bolch v. Smith, 7 Hurl. & N. 736. Or for leaving a defective railing on a roof or platform, on which the plaintiff was permitted to be. Ioay v. Hedges, 9 Q.B.Div. 80; McAlpin v. Powell, 70 N.Y. 126; Vanderbeck v. Hendry, 34 N.J.Law, 467; McLean v. Burnham, 8 Atl.Rep. 25; Nicholson v. Railway Co., 41 N.Y. 525; Sutton v. Railroad Co., 66 N.Y. 243; Moffatt v. Bateman, L.R. 3 P.C. 115. See, also, as to the rights of a visitor. Southcote v. Stanley, 1 Hurl. & N. 247. Failure to give warning of the swinging bags was the only thing which could possibly be called negligence on the part of the defendant, and that is no more a breach of duty towards a licensee than a failure to guard a trap-door actually in use would have been. See Murray v. McLean, 57 Ill. 378, and other cases cited above. In no view of the evidence was the plaintiff entitled to any better rights than those of a mere licensee. Towards persons who come to the land in the exercise of a right, or who come on business with the owner or his tenant, the owner is bound to exercise some care; and he will be liable to such a person, if he falls into an unguarded trap-door or pitfall. Elliott v. Pray, 10 Allen, 378; Parker v. Barnard, 135 Mass. 116; Learoyd v. Godfrey, 138 Mass. 315. In Wright v. Rawson, 52 Iowa, 329, 3 N.W. 106, the plaintiff's intestate was a miner in the employ of the defendant. The declaration stated that it was the custom of the miners to visit one another in the different rooms of the mine, and that the plaintiff, while visiting two other miners in a room which the defendant knew to be dangerous, was injured by the roof caving in. Held, that this declaration was bad on demurrer, as not showing that the plaintiff owed the defendant any duty. See, also, Eaton v. Railroad Co., 57 N.Y. 382; Flower v. Railroad Co., 69 Pa.St. 211. The case of Smith v. Docks Co., L.R. 3 C.P. 326, which is much relied on by the plaintiff, has no bearing on the case at bar. Here the plaintiff was coming on business, and the only question raised or decided was whether there was privity between him and the defendant. Even a person coming on business must use the approaches prepared for him, and not attempt, as the plaintiff did, to go on board a passenger steamer by a freight-gangway. Victory v. Baker, 67 N.Y. 366; Pierce v. Whitcomb, 48 Vt. 127; Murray v. McLean, 57 Ill. 378; Parker v. Publishing Co., 69 Me. 173. It was gross negligence to approach and stop near to and look down the open hatch of a vessel taking in cargo, without looking to see whether it could be safely done. Dwyer v. Steam-ship Co., 17 Blatchf. 472, 4 F. 493. If the defendant had every right to be where he was, his position is not better than that of a traveler on a highway at a railroad crossing, who is bound, at least, to look in each direction for trains. Butterfield v. Railroad Corp., 10 Allen, 532; Allyn v. Railroad Co., 105 Mass. 77. Similar caution may well be required of a man walking along the deck of a loading steamer, and passing an open hatch. Wilkinson v. Fairrie, 1 Hurl. & C. 633.
This is an action of tort for damages suffered by the plaintiff through falling into the hold of defendant's steamship Catalonia. The case, on the plaintiff's testimony, was as follows: He wished to consult with Dr. Vincent, one of the defendant's surgeons, about bringing his family to this country. Dr. Vincent, when the plaintiff knew him, was on the Samaria, but had told the plaintiff that he hoped and expected to get exchanged to the Catalonia. He had not been exchanged to that vessel, however, and was not on board of her. The accident was on Tuesday or Wednesday. The defendant's dock was not open to the public except on Fridays, and then only subject to the gate-keepers discretion; but the plaintiff and his companion, McNulty, found the gates open and went in without objection. As the ship they found a freight gangway, up which they went. When on deck they met a man who, the witnesses thought, had on the uniform of an officer, and who...
To continue reading
Request your trial