Pearson v. Mallory S.S. Co.
Decision Date | 17 January 1922 |
Docket Number | 3708. |
Citation | 278 F. 175 |
Parties | PEARSON v. MALLORY S.S. CO. |
Court | U.S. Court of Appeals — Fifth Circuit |
Eldridge Cutts, of Fitzgerald, Ga., for plaintiff in error.
W. A Carter, of Tampa, Fla., and W. E. Kay, of Jacksonville, Fla for defendant in error.
Before WALKER, BRYAN, and KING, Circuit Judges.
Martha E. Pearson (hereinafter styled plaintiff) brought suit against the Mallory Steamship Company hereinafter styled defendant) to recover for personal injuries sustained by her by a fall on defendant's wharf, on which she was a visitor. Her declaration alleged that the injuries were produced by her foot coming in contact with a plank about two inches thick nailed over a hole, thus causing a projection above the regular line of the floor of the wharf of about two inches. The negligence charged was the nailing of the board over the hole, causing such projection, instead of inlaying it, so as to make an even surface. It was not alleged that the projection was not plainly visible or the plaintiff did not know of its existence.
The court below rendered the following opinion:
The declaration was dismissed on demurrer, as stating no cause of action. Plaintiff brings error on this judgment.
The position of the plaintiff as stated in her declaration was that of a mere visitor; 'the relation of licensor and licensee' existed, where 'the licensee can only recover for setting a trap or for active negligence. ' Greenfield v. Miller, 173 Wis. 184, 180 N.W. 834 837, 12 A.L.R. 982; Plummer v. Dill, 156 Mass. 426, 31 N.E. 128, 32 Am.St.Rep. 463.
The facts stated show no negligence on the part of the defendant....
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