Midland Valley R. Co. v. Littlejohn
| Decision Date | 25 August 1914 |
| Docket Number | 3019. |
| Citation | 143 P. 1,44 Okla. 8,1914 OK 388 |
| Parties | MIDLAND VALLEY R. CO. v. LITTLEJOHN. |
| Court | Oklahoma Supreme Court |
On Rehearing, September 22, 1914.
Syllabus by the Court.
A landowner owes either a trespasser or a mere licensee a duty in respect to safety from dangerous artificial condition of premises, to not injure him intentionally or wantonly.
A mere omission, involving a reckless disregard for the safety of merely technical and reasonably anticipated trespassers or bare licensees, in respect to seriously dangerous artificial condition of premises which are obvious to such owner, may amount to wantonness in him; and the artificiality, the attractiveness, and the accessibility of such dangerous place or thing thereat, together with the probability of such trespassers or licensees, the gravity of the danger, the length of time it has existed, the smallness of the cost or inconvenience and of the deprivation of beneficial use involved in eliminating same, and the reasonableness of the inference that the landowner, as a person of ordinary sensibility and prudence, knew or should have known of and under all the facts and circumstances of the case, should have eliminated such danger, are proper considerations in determining whether there was such reckless disregard for the safety of such trespassers or bare licensees, or, in other words, whether there was wantonness.
It is error to instruct the jury so as to permit a trespasser or licensee, who has suffered personal injuries from contact with a dangerous thing on the premises of a landowner, to recover damages therefor without proof of either willfulness or wantonness on the part of such landowner.
In differentiating between invitees and licensees, an invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using it.
It is error to instruct a jury that invitation may be implied from the fact that the landowner knew, or, in the exercise of ordinary care ought to have known, that children were in the habit of coming on his premises to play or to gratify their curiosity.
Section 906. Stat. 1890 (section 998, Rev. Laws 1910), does not abrogate nor modify the common-law rule that a landowner owes neither a trespasser nor a bare licensee any duty except to not injure him intentionally or wantonly.
Commissioners' Opinion, Division No. 1. Error from District Court, Osage County; R. H. Hudson, Judge.
Action by Jesse Littlejohn against the Midland Valley Railroad Company, for damages for personal injuries. Judgment for plaintiff, and defendant brings error. Reversed and remanded.
Edgar A. de Meules and Sol H. Kauffman, both of Muskogee, for plaintiff in error.
H. P White, of Pawhuska, for defendant in error.
Plaintiff in error will be designated as defendant and defendant in error (who sues by his father as next friend) as plaintiff in accord with their respective titles in the trial court.
On July 25, 1910, an iron flywheel, about 30 inches in diameter and weighing about 365 pounds, was standing upon its flange, about 8 inches wide, on defendant's platform and near the door of its freightroom at its station at Foraker, Okl., when the plaintiff, a boy then 4 1/2 years old, accompanied by his older brother and two other young boys, went to said station and upon said platform to play, and in an effort to climb upon said flywheel, to which he was at once attracted, pulled it over upon his left foot and ankle, bruising and injuring the same so that it was the first of the next January before it had healed "so it would not run," and at the time of the trial on March 16-17, 1911, the same witness said, "He gets along on it very well," but that foot is a little weaker than the other, and until within about a month of the trial she had occasionally seen that foot give way with him, so that he would fall over and complain that it was hurting him; also at times he would come running from his play and complain that: "Something is biting me; it is sticking me like a pin"--this evidence being uncontradicted. The flywheel had been brought to Foraker about two or three weeks before the accident by defendant as an item of freight, and as such was kept on its platform where children, with its knowledge and without objection by it, were accustomed to play, notwithstanding a convenient freightroom in which it might have stowed and safely kept the same.
The court instructed the jury: (1) "That no person has a right to leave, even on his own land, dangerous machinery, calculated to attract and entice boys to it, there to be injured, unless he first take proper steps to guard against all danger; and any person who thus does leave dangerous machinery exposed without first providing against all danger is guilty of negligence." (2) "That when an object peculiarly attractive to children, and which is calculated to entice them, is left in a place easily accessible to children, and where the party responsible for the location and position of such object knows, or in the exercise of ordinary care and diligence must know, that children are accustomed to play in that vicinity, or pass thereby, and a child of less than five years of age goes upon said premises, and is injured by such object, that then the party who placed it there and left it unguarded and uninclosed is liable for such injury as proximately resulted therefrom." And (3) that the plaintiff was not entitled to recover unless the jury found: (a) That the defendant was guilty of negligence in leaving the flywheel where it was; (b) "that the injury was caused by an unguarded dangerous machine, or other dangerous thing, peculiarly attractive to children of the class to which the plaintiff belonged"; and (c) "that the defendant impliedly invited children of that class to come upon its premises;" but "this invitation may be implied from the fact that the landowner knew, or in the exercise of ordinary care ought to have known, that such children were in the habit of coming on his premises to play or to gratify their childish curiosity" A verdict for $1,995, the full amount asked, was returned and judgment entered accordingly.
In City of Shawnee v. Cheek, 137 P. 724, it is in effect shown that either willfulness or wantonness in the omission of a landowner to make safe a dangerous thing on his premises is essential to recovery by a trespasser for a personal injury sustained as a result of contact with such dangerous thing; and, although willfulness or wantonness may generally be more easily inferred (as a question of belief) in the case of a licensee, in Atchison, T. & S. F. Ry. Co. v. Cogswell, 23 Okl. 181, 99 P. 923, 20 L. R. A. (N. S.) 837, it is shown that the same rule of law applies as to licensees, and, further, in differentiating between invitees and licensees, it is there shown that:
"The principle appears to be that invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the...
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