Peregoy v. Western Md. Ry. Co.
| Decision Date | 17 April 1953 |
| Docket Number | No. 117,117 |
| Citation | 202 Md. 203,95 A.2d 867 |
| Parties | PEREGOY v. WESTERN MARYLAND RY. CO. |
| Court | Maryland Court of Appeals |
Paul S. Parsons and Hilary W. Gans, Baltimore, for appellee.
Before SOBELOFF, C. J., and DELAPLAINE, COLLINS and HAMMOND, JJ.
The appellant was injured when his employer's truck was struck by a coal hopper of the Western Maryland Railroad on a siding near which he had placed his truck while loading materials. After an adverse jury verdict, and judgment thereon, he brings up for review certain rulings of the trial court on the evidence and in the instructions.
The facts adduced are scarcely in dispute. For approximately a quarter-century the Pen-Mar Company, dealers in building supplies, has occupied a large area in the railroad company's Fulton Yard, in Baltimore City. There they received, unloaded, and stored materials shipped to them by rail. Such stored materials would remain sometimes for considerable periods till needed. They would then be reloaded to the Pen-Mar Company's trucks for delivery to customers. The occupancy was not under any written lease from the railroad, but was continuous over the years, and was advantageous to both the railroad, whose freight business was thus stimulated, and the Pen-Mar Company, which enjoyed a useful facility in its operations.
On September 5, 1950, the appellant, who had been employed as chauffeur for the Pen-Mar Company for twelve years was ordered to load his truck with flue liners from a pile situated in close proximity to the spur siding. These flue liners had been unloaded from a shipment over that siding some weeks earlier. After parking the truck close to the pile and close to the track, he proceeded with his work. The track was clear but for an empty coal hopper standing about a car's length away from the truck. This was a 'bad order car' which had been placed on the siding by railroad employees to be moved later to the repair shop. The accident happened when, without warning to the appellant, a switching engine pushed a box car against the coal hopper, propelling it a distance of 8 or 10 feet. This caused the coal hopper to collide with the truck and throw the plaintiff to the ground.
The appellant, who had been in Pen-Mar's employ for twenty years, and his witnesses related on the stand what happened on the morning of September 5. After testifying that the manner of loading which he followed on this occasion was customary, he testified that he was given no warning. He was about to testify also to the custom of the railroad to give warning when it moved cars on this spur siding. Objection to such testimony was interposed and sustained. Counsel for the appellant renewed the effort to prove the railroad's custom of giving warning under such circumstances and the appellant's reliance on such custom. The railroad's counsel insisted, however, that appellant should be confined to what happened on this one occasion. The trial judge again sustained the objection.
The engine crew testified that they were unaware of the presence of the truck and of the appellant till after the collision. They failed to see the truck as their switching engine passed by on an adjacent track shortly before the accident. They swore that they also did not see the truck or the plaintiff or his three helpers when the box car was shoved against the coal hopper, because there was a curve in the track which put the coal hopper between them and the truck.
At the conclusion of the testimony the court instructed the jury as a matter of law that the appellant was a licensee and not an invitee and that the railroad, therefore, owed him no duty except reasonable care to avoid injuring him after actually discovering his danger. The court rejected the appellant's requested instruction that the railroad was liable if it could have avoided injuring him after it saw or could have seen him in a position of danger. The jury was further instructed that the appellant was bound to anticipate that cars would be shifted back and forth, and that if he put his truck so near to the track as to cause it to be in reach of the hopper car he was guilty of contributory negligence disentitling him to recovery.
First we consider the question, was the appellant an invitee or a licensee and what was the measure of care due him by the appellee? A licensee is one privileged to enter another's land by virtue of the possessor's consent, for the licensee's own purposes. He must take the property as he finds it, the owner or occupant undertaking no duty to a visitor who comes for his own pleasure or convenience, except that, if he becomes aware of the licensee's presence, the licensor must not injure him wilfully or entrap him. Brinkmeyer v. United Iron & Metal Co., 168 Md. 149, 177 A. 171. An invitee or business visitor is one invited or permitted to enter or remain upon land for a purpose connected with or related to the business of the occupant. He is entitled to the exercise of ordinary care by the owner or occupant of the premises to discover as well as to avoid any danger which might threaten him through the use of any agency under his control. Baltimore & Ohio R. Co. v. Walsh, 142 Md. 230, 120 A. 715.
Appellee insists that the appellant's status was that of a licensee because in its view he was performing at the time of the accident duties for his employer which had no relation to unloading freight from a freight car, and that such duties were of no benefit to the railroad. It was on this theory that the court refused to admit evidence offered by the appellant as to a custom of the appellee to give warning of the approach of a locomotive on the spursiding; for the failure to give such warning on the morning of the accident could have no bearing on the issue if the appellant was a licensee and not entitled to warning in the absence of actual knowledge of his dangerous position.
We think appellee's interpretation is too narrow. This was not a mere casual use of railroad property for the sole benefit of the Pen-Mar Company. The uncontradicted evidence showed that the relationship, though not formalized in a written instrument, had continued for approximately twenty-two years; that large quantities of materials, regularly shipped on the Western Maryland Railroad, were customarily unloaded on this lot and retained there for varying periods to the knowledge of the railroad. Storing these articles on the land of the railroad was to its advantage, as well as Pen-Mar's. It promoted freight business for this carrier. It is inconceivable that the railroad would allow this valuable property to be used for so many years if it did not derive a benefit from the arrangement. The mutuality of the benefits is palpable from...
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