Smith v. Day

• Decision Date: 23 March 1898
• Docket Number: 2,307.
• Citation: 86 F. 62
• Parties: SMITH v. DAY et al.
• Court: U.S. District Court — District of Oregon

86 F. 62

SMITH v. DAY et al.

No. 2,307.

United States Circuit Court, D. Oregon.

March 23, 1898

A. S Bennett and G. W. Allen, for plaintiff.

John M Gearin and Stott, Boise & Stout, for defendants.

BELLINGER District Judge.

This is an action for damages resulting from an injury received by the plaintiff under the following circumstances: The plaintiff was a passenger on board the navigation company's boat, from the Dalles to Portland. At the Cascade Locks the defendants J. G. & I. N. Day were engaged as contractors for the government, in making rock excavations for the locks then in course of construction at that point. Their work was being carried on within what is known as the 'Government Reserve,' being lands reserved by the government for the purposes of the work under construction. A large force of men were being employed, and the practice was to fire off blasts at the noon hour, after the workmen had left their work for their dinners, and in the evening, after the time for quitting work. This blasting had been conducted regularly for a considerable period of time at this point during the short season in which the stage of water would permit that kind of work. The plaintiff, being a passenger as aforesaid, upon arriving at the locks, got on the portage railway, and rode down to the lower wharf, being a point on the reserve near where the work of blasting was being done. He went along with a number of other passengers. Upon reaching the lower wharf, he went on board the boat of the navigation company at that point, where he remained for some time, during which blasts were being fired. When he got to the lower boat, he heard blasting, and understood that blasting was being done. He went upon the boat, and was occupied for some 15 minutes in playing a game of cards, after which he talked to the steward for a few minutes, and then sat down in the forward part of the boat, and, becoming sleepy, either went to sleep, or dozed off in a state of partial sleep. In this situation he was struck by a rock thrown by one of the blasts, which broke through the upper deck of the boat, striking him on the head or back of the neck, causing the injury complained of. The jury found for the defendants.

The grounds of the motion for a new trial are:

(1) Error of the court in instructing the jury as follows:

'In determining the question of negligence in the prosecution of the work of blasting by the defendants, you must take into consideration the nature of the work being done, the time within which it was to be completed, the place where it was to be done, and the necessity of firing blasts at certain hours of the day, in order that the work might be completed within the contract time.' (2) Error of the court in submitting to the jury the question of contributory negligence, the contention of plaintiff being that there was no evidence tending to prove such negligence.

(3) Error of the court in refusing to instruct the jury, as requested by plaintiff, that if there was an arrangement between the navigation company and the defendants, by which the former had permission to use the landing where the accident occurred, at its peril, this would not bind plaintiff.

The negligence complained of, and upon which plaintiff relied as the ground of his recovery, consists (1) in the failure of the defendants to cover their blasts before firing the same; (2) in their failure to give reasonable notice, or any notice, to the passengers that blasts were about to be fired; (3) in not delaying the firing of such blasts until such time as the boat had departed from the wharf, and was out of danger.

It is argued that the instruction that the jury might take into consideration the nature of the work being done, the time within which it was to be completed, the place where the work was being done, and the necessity of firing blasts at certain times of the day in order that the work might be done within the contract time, makes the case turn upon the question of the necessity the defendants were under of doing the work as it was being done in order to complete it as they had contracted to do; that a party has no more right to be careless or reckless of human life by a contract with the government than by a contract with an individual; that a party cannot relieve himself from his duty to adopt measures of safety and protection by accepting such conditions in his contract as are inconsistent with any measure of prudence necessary to the safety of third persons. The principle thus stated cannot be gainsaid. A party who owes a duty in that regard cannot excuse himself for a failure to exercise ordinary care and skill, whereby another has been injured, by urging the necessities of his own situation at the time. But the term 'ordinary care' is a relative term, always dependent on relationship and circumstances. 16 Am. & Eng.Enc.Law, 398. The term 'negligence' has different meanings in relation to different causes of action. In some cases it means a very slight absence of care and prudence; in others, the absence of reasonable care; and, again, such want of care as makes gross negligence. Railroad Co. v. Woodruff, 59 Am.Dec. 72. Care is, undoubtedly, a relative term, or, rather, conveys a relative idea as to the degree necessary to be observed under circumstances. Railroad Co. v. Ogier, 35 Pa.St. 60. Want of ordinary care means nothing more than the failure to use those precautions which a just regard to the persons and property of others demands should be used under the circumstances of the particular case. The Farmer v. McCraw, 26 Ala. 189. And it has accordingly been held that it is the duty of a railroad company to exercise more caution and a higher degree of care when running their cars through a village or city than in the open country. Beisiegel v. Railroad Co., 34 N.Y. 622. 'Ordinary care' depends upon the performance of a duty which one of the parties owes to the other, and this duty 'arises out of the various relationships of life and varies in obligation under different circumstances. In one case the duty is high and imperative; in another it is of imperfect obligation. Thus, it may be dependent on a mere license to enter upon land or the bare obligation to avoid inflicting a willful injury upon a trespasser; while, upon the other hand, it may be a duty to care for the safety of a specially invited guest or of a passenger for hire.' 16 Am.& Eng.Enc.Law, 412. 'So, a license who enters on premises by permission only, without any enticement, allurement, or inducement being held out to him by the owner or occupant, cannot recover damages for injuries caused by obstructions or pitfalls. He goes there at his own risk, and enjoys the license subject to its concomitant perils. No duty is imposed by law on the owner or occupant to keep his premises in a suitable condition for those who come there solely for their own convenience or pleasure, and who are not either expressly invited to enter or induced to come upon them by the purpose for which the premises are appropriated and occupied, or by some preparation or adaptation of the place for use by customers or passengers, which might naturally and reasonably lead them to suppose that they might properly and safely enter thereon. ' Sweeny v. Railroad Co., 87 Am.Dec. 647. Where one who, without invitation and as a license, only crossed the lands of another, where he and others had often crossed, and fell into an unprotected pit, and was injured, held that the owner of the premises was not liable. Morgan v. Railroad Co., 19 Blatchf. 239, 7 F. 78.

This principle is applied in Eisenberg v. Railway Co., 33 Mo.App. 91, where it is held that mere licensees, in the use of a road across private property, in making use of the license, necessarily assume all patent and obvious risks. It is also applied in the case of Transit Co. v. Rourke, 10 Ill.App. 478. In the latter case there was an uncovered pit on defendant's land, from which the accident and consequent damages claimed resulted. The deceased was upon the defendant's land, without any invitation from the defendant. The facts, as stated in the opinion, appeared to be that many other persons 'were in the habit of passing over said land, of their own motion, and for their own convenience,' without objection on defendant's part; 'but these facts,' the court says, 'at the utmost, only raise an implication of a license to the deceased to do the same thing, but gave him no right beyond that of a mere licensee. ' And in Railroad Co. v. Griffin, 100 Ind. 223, the court say:

'The owner of premises is under no legal duty to keep them free from pitfalls or obstructions for the accommodation of persons who go upon or over them merely for their own convenience or pleasure, even where this is done with his permission. In such case the licensee goes there at his own risk, and, as has often before been said, enjoys the risk with its concomitant perils.'

In this case there was no invitation by the defendants to the plaintiff or to the navigation company to go upon the premises in question. The latter's passengers went upon these premises for their own convenience, and by the implied permission of defendants. Plaintiff contends that the premises were a highway; that the river has this character and that it was the right of all persons to pass up and down at this point; and that the defendants were obliged, at whatever inconvenience to themselves, to adopt all necessary precautions for the safety of plaintiff and his fellow passengers, even if in consequence thereof they became unable to comply with their contract in the completion of the improvement in which they were engaged. Such is the rule governing the enjoyment of property by one owner with reference to the rights of...