Potter v. New York, O.&W. Ry. Co.

• Decision Date: 18 April 1933
• Citation: 185 N.E. 708,261 N.Y. 489
• Court: New York Court of Appeals Court of Appeals
• Parties: POTTER et al. v. NEW YORK, O. & W. RY. CO.

261 N.Y. 489

185 N.E. 708

POTTER et al.

v.NEW YORK, O. & W. RY. CO.

Court of Appeals of New York.

April 18, 1933.

Action by Josie A. Potter, as administratrix of the goods, chattels, and credits of Charles M. Potter, deceased, and by the Great American Indemnity Company against the New York, Ontario & Western Railway Company. Judgment of Trial Term entered upon a verdict in favor of plaintiffs was reversed as matter of law, and a new trial granted by the Appellate Division (233 App. Div. 578, 253 N. Y. S. 394), and plaintiffs appeal.

Order of Appellate Division affirmed, and judgment absolute ordered against plaintiffs on stipulation.

Appeal from Supreme Court, Appellate Division, Fourth department.

Crandall Melvin, of Syracuse, for appellants.

Avery S. Wright, of Oswego, and Elbert N. Oakes, of Middletown, for respondent.

KELLOGG, Judge.

The defendant railroad was the owner of a coal trestle some twenty-five feet wide and thirty feet high. The space below the deck of the trestle was partitioned off into fifty compartments, each compartment having two of the bulkheads, used to support the trestle, as side walls. The deck of the trestle served as a roof, while the base of the trestle served as a floor for all compartments. Planking constituted the other walls, and completed the inclosures. These pockets were designed to store coal, delivered to them by the railroad, through trapdoors in the deck, from coal cars stationed on tracks running along the deck. Two of these coal pockets were in the occupation of the J. E. Hawley Coal Company, under lease or license from the defendant railroad. On a certain day the defendant delivered coal into one of the Hawley pockets, and the Hawley Company was unloading into trucks, on the outside of the trestle, through a shute which passed through the side wall of the pocket. The coal lodged, and it became necessary to dislodge it with shovels. Several men, employed by the Hawley Company, entered the trestle for this purpose. One of these men was Charles N. Potter, who made entrance to the pocket through the trapdoor in the deck of the trestle, and descended to the floor by means of a ladder, fastened to the bulkhead wall at points which placed the ladder just under the opening. After working for a time, Potter, attempting to make his exit, climbed the ladder, which broke from its fastenings, and projected him to the floor of the pocket causing his death.

The widow of Potter filed a claim against the J. E. Hawley Coal Company, the employer, and its insurance carrier, and received an award of death benefits. The award, paid by the carrier, operated to transfer any cause of action, held by the widow against the defendant railroad company, for negligent maintenance of the coal pocket, to the carrier. Accordingly, this action in negligence was brought, on behalf of the carrier, to procure damages for the death of Potter. A verdict was recovered at Trial Term. The Appellate Division reversed and ordered a new trial. The plaintiff, having stipulated for a judgment absolute, has appealed to this court. For the purpose of the discussion, we will assume that, if the railroad owed a duty of care to Potter, it had breached that duty in not fastening the ladder more securely.

Liability for injuries or death, suffered by a visitor to dangerous structures or premises arises from occupancy, not from ownership. The occupant having exclusive possession may forbid entrance to all visitors, in which case, with some exceptions, no duty of care arises, and the visitor may not complain if injured. On the other hand, the occupant having such possession alone may give an invitation, or grant permission to make entry. In that case a duty of care does arise to bind the occupant, the nature and extent of which depends upon the character of the visitor, as determined by the invitation or permission extended. Thus the duty of active care to make the premises safe is owed to an invitee, or business visitor; whereas, the duty of disclosing or eliminating a known danger is the measure of the duty owed to a gratuitous licensee. As no duty whatever arises except through invitation or permission, and the measure of that duty depends upon whether there has been given the one or the other, ordinarily the duty of care, if any, binds no other than the occupant, who alone has power to invite or license. This may be subject to some exceptions, such as when the owner leases dangerous premises knowing that the tenant will invite the public to visit the same. However, generally speaking, the owner, having parted with possession, and lost power to exclude or to invite, cannot be liable if the visitor be injured. These principles are universally acknowledged to be the law upon the subject. Salmond on the Law of Torts, p. 452; The Law of Torts, Pollock (13th Ed.) p. 527; Shearman & Redfield on the Law of Negligence, § 704; Restatement of the Law of Torts, §§ 212, 213, 227; Haefeli v. Woodrich Engineering Co., 255 N. Y. 442, 175 N. E. 123;Cullings v. Goetz, 256 N. Y. 287, 176 N. E. 397. ‘The person responsible for the condition of the premises is he who is in possession of them for the time being, whether he is the owner or not. For it is he who has the immediate supervision and control and the power of permitting or prohibiting the entry of other persons.’ Salmond, supra, 445, 446. The power of control, necessary to raise the duty of care, ‘implies the power and the right to admit people to the premises and to exclude people from them.’ Cavalier v. Pope, [1906] App. Cas. 428, 433. In the case of a tenant's possession under a lease, the landlord is not liable, even though he assumes the duty to repair the premises. Cullings v. Goetz, supra. In that case Chief Judge Cardozo stated: ‘Liability in tort is an incident to occupation or control.’ Page 290 of 256 N. Y.,176 N. E. 397, 398. ‘By...