Simmons v. Chesapeake

• Decision Date: 09 September 1924
• Docket Number: C. C. 289.
• Citation: 97 W.Va. 104
• Court: West Virginia Supreme Court
• Parties: Simmons v. Chesapeake & Ohio Ry. Co.

97 W.Va. 104

Simmons

v.Chesapeake & Ohio Ry. Co.

C. C. 289.

Supreme Court of Appeals of West Virginia.

Submitted September 3, 1924.

Decided September 9, 1924.

1. Negligence Trespasser Cannot Recover for Injury, Unless

Negligence Amounts to Wanton Injury.

A railroad company is under no duty to a mere trespasser to keep its premises safe, and such a trespasser, injured on such premises, cannot recover from the company by reason of the unsafe condition of the premises unless its negligence is so gross as to amount to wanton injury. (p. 107). (Negligence, 29 Cyc, p. 442).

2. Same Infancy of Trespasser Does Not Raise Duty.

The fact that the trespasser is an infant of tender years does not raise a duty where none otherwise exists. (p. 107). (Negligence, 29 Cyc, p. 440).

3. Same When Infant Presumed Unable to Comprehend Dangers.

An infant between the ages of seven and fourteen years is presumed not to possess sufficient mental capacity to comprehend and avoid dangers though such presumption may be overcome by competent evidence showing such capacity. (p. 108).

(Negligence, 29 Cyc, p. 540).

Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.

Certified Question from Circuit Court, Raleigh County.

Action by Cecil Simmons against Chesapeake & Ohio Railway Company. Demurrer to declaration sustained, and question certified.

Affirmed.

J. W. Maxwell and Ben II. Ashworth, for plaintiff.

Fitzpatrick, Brown & Davis and C. W. 8trickling, for defendant.

Miller, Judge:

The circuit court sustained defendant's demurrer to plaintiff's declaration, and has certified to us the question of the correctness of his ruling thereon.

The declaration alleges that plaintiff was a boy nine years of age, living with his parents in a house located on defendant's right of way; that plaintiff's father was an employee of the defendant company; that the only means of egress and ingress from and to plaintiff's residence was over and along the said right of way; that about one hundred and fifty feet from the residence, the defendant maintained a tool house, in which was stored tools, explosives and other materials used in the maintenance of the right of way; that the tool house was uninclosed, and that one side was about five feet from the ground, the other level with the grade of defendant's railway track; and that the open space under the tool house was not enclosed or protected. The declaration further alleges that plaintiff's family secured water from several springs in the vicinity, and that to reach one of these springs it was necessary to pass along defendant's right of way near the tool house, though it is not directly alleged that plaintiff or any of the other members of his family actually did use this particular spring. It is further alleged that plaintiff and his brothers and sisters were accustomed to play along the right of way and under and around the tool house, of which defendant's section foreman had full knowledge, and which he permitted. Plaintiff says that on a certain day, while playing near the tool house, he found under the said house a dynamite cap, and actuated by a childish desire to near it explode, though he did not know of the danger that might result from such explosion, he placed it on one of the railroad rails and struck it with a large bolt; and that the explosion destroyed the sight of one of his eyes. The acts of negligence relied on were that defendant failed to keep its tool house in repair and enclosed, but negligently and carelessly permitted dynamite caps to become scattered under and around the same and on and about its right of way, with knowledge of the fact that plaintiff and other children were accustomed to use the premises as a playground. And it is further averred that it was the duty of defendant to keep its premises under and around its said tool house on the right of way free from explosives of any kind, including dynamite caps or other dangerous agencies which might be then and there liable to cause injury to children of the age of plaintiff.

The controlling question presented, and the one upon which the correctness of the ruling of the trial court must be determined, is whether plaintiff was a trespasser or mere licensee at the time he was injured, or whether he was an invitee or licensee occupying by right a part of the premises leased to his father by defendant.

Counsel for plaintiff contend, that because of the limited width of the right of way on which the house leased to plaintiff's father was located, plaintiff had a right to play with his brothers and sisters at any place on defendant's premises within a reasonable distance from the residence occupied by him; that the tool house was located on a part of the father's leasehold; and that plaintiff was not a trespasser when he entered the open space under the tool house. It is said that there were no streets or alleys or a public road near plaintiff's residence, and that he could not leave the premises other than by defendant's right of way without trespassing on the private property of others, and of necessity had to use defendant's premises as a playground; and that defendant must presume he would do so.

We do not think plaintiff's contention is correct. It is not alleged that plaintiff's father had by his lease any right in the tool house. It is to be presumed that this house was reserved by defendant to be used exclusively by it for the purposes for which it was erected and maintained, namely, the storage of tools and other materials used in the maintenance of the railway. Defendant was not under any duty to furnish a...