Printy v. Reimbold

• Decision Date: 29 September 1925
• Docket Number: No. 36524.,36524.
• Citation: 205 N.W. 211,200 Iowa 541
• Parties: PRINTY v. REIMBOLD.
• Court: Iowa Supreme Court

200 Iowa 541

205 N.W. 211

PRINTY

v.REIMBOLD.

No. 36524.

Supreme Court of Iowa.

Sept. 29, 1925.

Appeal from District Court, Lee County; John E. Craig, Judge.

On rehearing. Petition overruled.

For former opinion, see 202 N. W. 122.B. F. Jones and Hollingsworth & Hollingsworth, all of Keokuk, for appellant.

O'Harras & Walker and W. R. Sheridan, all of Keokuk, for appellee.

STEVENS, J.

Counsel for appellant, in a petition for rehearing, vigorously argue, in support of their contention urged in their briefs upon the original submission of this case, that deceased met her death while on the premises of appellee as an invitee. It is conceded that she was not an invitee within the general doctrine that one going upon the premises of another for their mutual advantage is an invitee, but it is contended that the facts of this case bring it within the class of cases in which the defendant by his conduct has allured or induced a party to use a private way in the belief that it is open for the use of the public, thereby imposing the duty upon him of maintaining the same in a reasonably safe condition. The doctrine, as stated, is familiar, and has been recognized and applied in numerous cases in this state. Ambroz v. Light & Power Co., 131 Iowa, 336, 108 N. W. 540;Connell v. Electric Railway Co., 131 Iowa, 622, 109 N. W. 177;Upp v. Darner, 150 Iowa, 403, 130 N. W. 409, 32 L. R. A. (N. S.) 743, Ann. Cas. 1912D, 574.

As stated by Shearman & Redfield on Negligence (6th Ed.) § 706, the doctrine is as follows:

“Invitation will also be implied from such long acquiescence as reasonably to give rise to the inference that it is invited, but it is not ordinarily to be inferred from mere passive acquiescence in what would otherwise be a trespass.”

The private way or road in question is reached from the public highway near the river bank at the extreme right or lower corner, some distance from where the travel turns to the southeast. It is very short, lies within a few feet of the river bank, on the right, approaching the river, and an old shed and telephone pole and pile of lumber on the left.

A traveler upon the highway approaching the river in the daytime has a clear view of the stream for a distance of at least 250 feet, and at a distance of 100 feet an extensive view up and down the stream. The view of the river is enlarged as it is approached. The road in question never had been nor could it be used by the public for any other purpose than that for which it was designed--that is, to reach the ferry. There could not, therefore, have been such acquiescence in the use thereof by the public for any other purpose as to give rise to an implied invitation to use it. It led only to the dock nearby, and, under ordinary circumstances, no one could possibly be misled by it. The view of the river was unobstructed. The driver of the car did not enter upon this road because he had been led to believe it was a public way by any act of appellant. He was lost, and went thereon without knowing where he was. Appellant did not maintain an excavation or other dangerous place in the road of the private way. The only danger to be apprehended, if any, was that a traveler in the nighttime, who was unfamiliar with the road and surroundings, might drive off the highway and to the dock which was unprotected. All of the cases cited by appellant and all that we have been able to find in which the liability of the owner was sustained on the theory of counsel are cases in which there was a clearly implied invitation to the public to use a private way, arising either out of long acquiescence in the use by the public thereof, or in which the highway and the private premises were so connected and improved as to make it impossible to distinguish the line of demarcation between them. As stated, there was and could have been no acquiescence upon the part of appellee in the use of the way in question by the public. It did not and could not use it for a public purpose. We need not review the cases cited by appellant or distinguish them in detail. They are clearly distinguished from the present case by the facts. No cases called to our attention are more favorable to appellant than the following, none of which, in our judgment, sustain liability in this case on the theory that deceased was an invitee. Plummer v. Dill, 31 N. E. (Mass.) 128; Sweeny v. Old Colony & Newport R. R. Co., 92 Mass. 368;Carleton and Others v. Franconia Iron & Steel Co., 99 Mass. 216;Oliver v. Worcester, 102 Mass. 489, 3 Am. Rep. 485;Davis v. Central Congregational Society of Jamiaca Plain, 129 Mass. 367, 37 Am. Rep. 368;Murphy v. Boston & Albany R. Co., 133 Mass. 121;Hydraulic Works Co. v. Orr, 83 Pa. 332;Barry v. N. Y. C. & H. R. R. Co., 92 N. Y. 289, 44 Am. Rep. 377;Lawson v. Shreveport Waterworks Co., 111 La. 73, 35 So. 390; Low v. Grand Trunk Railway Co., 72 Me. 313, 24 Am. Rep. 331; Pomponio v. New York, N. H. & H. R. Co., 66 Conn. 528, 34 A. 491, 32 L. R. A. 530, 50 Am. St. Rep. 124;De Tarr v. Ferd. Heim Brewing Co., 62 Kan. 188, 61 P. 689;Tomle v. Hampton, 129 Ill. 379, 21 N. E. 800;Mellen v. Morrill, 126 Mass. 545, 30 Am. Rep. 695;Holmes v. Drew, 151 Mass. 578, 25 N. E. 22;Crogan v. Schiele, 53 Conn. 186, 1 A. 899, 5 A. 673, 55 Am. Rep. 88;Minneapolis Mill Co. v. Wheeler, 31 Minn. 121, 16 N. W. 698;Chesapeake & O. Ry. Co. v. Jennings, 98 Va. 70, 34 S. E. 986;Cavanagh v. Block, 192 Mass. 63, 77 N. E. 1027, 6 L. R. A. (N. S.) 310, 116 Am....