Phipps v. Oregon R. & Nav. Co.

• Decision Date: 01 January 1908
• Docket Number: 1,244.
• Citation: 161 F. 376
• Parties: PHIPPS v. OREGON R. & NAVIGATION CO.
• Court: U.S. Court of Appeals — Ninth Circuit

161 F. 376

PHIPPS v. OREGON R. & NAVIGATION CO.

No. 1,244.

United States Circuit Court, D. Washington, Eastern Division.

January 1, 1908

O. C Moore, for plaintiff.

W. W Cotton, Samuel R. Stern, and Snow & McCamant, for defendants.

WHITSON District Judge.

Defendant has demurred to the complaint upon two grounds. First. That the statute of limitations has barred the action the same not having been commenced within two years. Upon the authority of Robinson v. Baltimore, etc., Mining Co., 26 Wash 484, 67 P. 274, it must be held that the position is not well taken. Second. That the complaint does not state facts sufficient to constitute a cause of action.

It is alleged that the defendant had maintained for 15 years prior to August, 1903, a certain railroad track within the corporate limits of the city of Spokane, upon premises particularly described; that this track afforded the most direct route for pedestrians passing between a large residence district and the business portion of the city, and that persons passing back and forth had, for 15 years, openly, notoriously, and continuously, at all hours of the day and night, traveled upon and walked along the same as a public walk or highway, and that the plaintiff had so used it, in common with the public generally, for a long time prior to that date; that defendant, although fully advised, never objected, but on the contrary permitted and invited its use; that the track had been maintained in a safe condition so that passing pedestrians would encounter no danger; that nevertheless, on or about the date aforesaid, the defendant, through its servants and agents, removed the earth from between and beneath a considerable number of the cross-ties, and removed some of the ties, leaving others fastened and clinging to the rails, thereby creating a dangerous excavation or pitfall, which was left unguarded and unprotected in the nighttime, and without lights, notice, or warning of any kind to prevent those passing along from falling therein; that the plaintiff in crossing said track, as he was accustomed to do in going to and returning from his work, fell into this pitfall and was injured.

Undoubtedly one who invites the public to come to his place of business owes a higher duty to persons entering upon his premises than one who silently acquiesces in travel across the same by failure to object; but the view founded in natural justice which seems to have the approval of many authorities, is that one who knowingly, and for a long period of time, permits the public to use his premises without objection, for the purpose of traveling across the same upon a well-established and safe path or highway, cannot, without giving notice, render the same unsafe to the injury of those who have used such highway, and have no notice of the changed condition, without responding in damages for resulting injury. Illinois Central R. Co. v. Waldrop, 72 S.W. 1117, 1118, 24 Ky. Law Rep. 2127; Matthews v. Seaboard Air Line Ry., 67 S.C. 499, 46 S.E. 338-339, 65 L.R.A. 286; Rooney v. Woolworth, 78 Conn. 167, 61 A. 366, 367; Burton v. Western A. R. Co., 98 Ga. 783, 25 S.E. 736; Etheredge v. Central of Georgia Ry. Co., 122 Ga. 853, 50 S.E. 1003, 1004; Carskaddon v. Mills, 5 Ind.App. 22, 31 N.E. 559, 560; Graves v. Thomas, 95 Ind. 361-364, 48 Am.Rep. 727; ...