Smith v. Sunday Crepjk Co.
| Decision Date | 30 June 1914 |
| Docket Number | No. 2357.,2357. |
| Citation | 74 W.Va. 606 |
| Parties | Smith, Adm'r, v. Sunday Crepjk Company. |
| Court | West Virginia Supreme Court |
1. Negligence Unsafe Premises-Duty of Owner.
To persons induced, allured or enticed by the owner to enter upoM premises, or thereon by his express or implied invitation, he owe* a higher degree of care, in having and keeping the premises reasonably safe, if such persons were mere licensees, (p. 608).
2. Same Invitation to Enter'on Premises Implied Invitation.
An invitation to enter upon premises, within the meaning of th« law of negligence, will be implied where the entry thereon at the instance of the owner is in connection with his business or for his benefit. Pailroad v. O'Malley, 107 Til. App. 600. (p. 609).
3. Railroads Use of Trade as Pathway Bight of Tenant.
A tenant occupying a dwelling, and using therewith an out-house, on the premises of his employer, a coal company, which as a commoi carrier operates a railroad through the premises, located within a few feet of the dwelling and outhouse, forty feet apart, and who uses its track or a pathway beside it as the only reasonably convenient means of access from the dwelling to the out-house, is, while making such use of the track or pathway, neither a trespasser nor a mere licensee. He is thereon by full legal right. And the members of his family are entitled to a like right of way. (p. 609).
4. Same Death of Person on Track Direction of Verdict Evidence.
Where, in an action against the company for the wrongful death of a.child of such tenant and employee, it is proved by plaintiff that there was an incline in the track past the dwelling, and that intestate was killed, while on the pathway to the out-house, by the sudden starting and movement down the grade, without application of any external force, of a car left by the company thereon two hours before the accident, unblocked, and with brakes unset, it is error on the part of the trial court, without any proof by the company, to exclude plaintiff's evidence and direct a verdict for defendant, (p.611).
Error to Circuit Court, Kanawha County.
Action by S. P. Smith, Sheriff, etc., against Sunday Creek Company. Judgment for defendant, and plaintiff brings error.
Reversed and Remanded.
Caio & Bledsoe, for plaintiff in error.
Brown, Jackson & Knight, for defendant in error.
Defendant is a corporation engaged in the mining of coal, and as a common carrier in the operation of a railroad which affords transportation facilities from its mines. On April 5, 1909, it had completed and equipped ready for use, but had not theretofore used, a spur from its main line to its mine 109. Ignatius Pawlak, as its tenant and employee, occupied a lveiling, OAvned by it, located within a few feet of the track, and therewith used a small out-house or water jet about the same distance from the track and forty feet from the dwelling. Between the two houses, a path along the track, or, as one witness says, the track itself, was the only reasonably available walkway the one generally used by pedestrians in passing through defendant's property thus occupied by Pawlak, and by the members of Ms family in going to and from the water closet. A mud hole and an embankment made other means of access thereto either inconvenient or unfit for such use. Four houses were owned by defendant near the spur in that vicinity, and all of them were occupied by persons in its employ, who habitually used the path and the track in going to and from its mines.
About eight o'clock in the evening of April 5. Lottie Pawlak, a four year old daughter of Ignatius, while on the walkway to the closet, was struck and killed by a "buck jimmy'*, or a five-ton car, owned by defendant and used by it to haul and dump ashes for ballast on the track. On that day its employees had thus used it; but left it, unblocked and with brakes "unset", on the spur near the Pawlak dwelling and between it and the closet. For some cause not explained, the car, as the child was passing along the outside of the track, started down a slight grade from the position it had occupied for two hours prior to the injury, and caused her to fall in front of it on one of the rails, where it ran against and killed her. To recover damages for the injury thus inflicted, plaintiff, as administrator brought this action. On motion, the trial court excluded plaintiff's evidence and directed a verdict for defendant.
Did the company owe deceased any duty violation of which rendered it liable to her estate? The defense is predicated upon the theory that she Avas, at the time of injury, a trespasser. Under the circumstances detailed, that is not a sound legal conclusion. It is true, some of our cases hold that continued use, however prolonged, of a railroad right of way, except at a public crossing, does not make it a public walkway. Those who thus use it, with the knowledge and acquiescence of the owner, are, however, not trespassers. They become mere licensees. As such, they enjoy the priving subject to the concomitant perils and the dangers inc to the legitimate use by the owner of its property for purposes to which it was appropriated. Woolwine v. Hail road Co., 36 W. Va. 392; McVey v. Railroad Co., 46 W. Va 111; Railroad Co. v. Ormsby, 27 Grata. 455; Railroad Co. v. Surge, 84 Va. 63; Railroad Co. v. Carper, 88 Va. 556; Rail- ad Co. v. Wilson, 90 Va. 263; Railroad Co. v. DeBoard, 91 i. 70; Railroad Co. v. Cor bin, 110 Va. 700; Railroad Co. v. iley 112 Va. 183.
Here, however, Pawlak, the father, was a tenant in the (ccupaney of a house owned by defendant, with the right to rhe use and enjoyment of the premises by himself and family, ^subject of course to the dominant use by it of its railroad trackage, with which neither he nor deceased interfered. Thus, the conclusion seems reasonable that deceased was not in any sense a trespasser.
AVhen injured, Lottie Pawlak was of course on defendant's property, but not on its track. The presence of the car excluded her from the use thereof, Both dwelling and outhouse were on its property. Each was intended for the use of members of the tenant family. She was on the walkway between the buildings, the path being along the outer edge and near the ends of the cross-ties. Having the right thus to use the property, none of the family may properly be deemed a mere licensee. Mere permissive use of premises, by express or implied authority, ordinarily creates only a license. Yet if the use is in connection with the business of the owner, or for his benefit, it is more than a mere license; and a greater degree of care is recognized on his part than in cases of mere licensees using the premises for purposes of their own. White, Per. Inj. on Railroads, §§ 859, 870; 29 Cyc. 454; 3 Elliot on Railroads, §§1248, 1249; 1 Thomp. Neg. § 978; 2 Id. §1719; 2 Sherm. & Redf. Neg. §485: 3 Id. §§704, 706; Sesler v. Coal Co., 51 W. Va. 318; Williams v. Coal & Coke Co., 55 W. Va 84; Niclwls v. Railroad Co., 83 Va. 99; Railroad Co. v. Brown, 90 Va. 340; Smith v. Association, 48 W. Va. 236. Even one who resides as a boarder at the home of an employee, living in a house built by a railroad company tpoint where crossing of a track is necessary, when thereon by the negligent running of a train, has a If action. McDermott v. Railroad Co., 28 Hun. 925, T\. Y. 654. The Pawlaks had occupied the premises for ifieven months. Ignatius was a tenant and an employee working for defendant in one of its mines. Lottie was a member of this household. Her rights on the leased premises were coextensive with his. If he could use the two buildi and the intervening walkway, so could she. That both cou so use the buildings, and the usual means of access there seems beyond the realm of doubt.
As the facts of the ease last cited bear approximat similarity to the facts here, they are given somewhat i detail. Defendant owned certain dwellings within the limit of the city of Albany, one of which had been occupied for several years by Carroll. Plaintiff, McDermott, had been boarding with him for five years at the time of the accident. Carroll paid rent to defendant, and both he and McDermott had been in its employment as track hands. There was no way from the house in which they resided except over defendant's railroad track. It had not designated the way to be used by them. Plaintiff was struck and injured in the night time, while crossing the track to visit a brother, by the tender of a backing engine, which gave no warning of its approach. In the opinion, it is said: ...
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