Southern v. Cowan Stone Co.

• Decision Date: 09 July 1949
• Citation: 221 S.W.2d 809,188 Tenn. 576
• Parties: SOUTHERN v. COWAN STONE CO. et al.
• Court: Tennessee Supreme Court

221 S.W.2d 809

188 Tenn. 576

SOUTHERN v. COWAN STONE CO. et al.

Supreme Court of Tennessee.

July 9, 1949

Error to Circuit Court, Franklin County; Alan S. Kelly, Judge.

Personal injury action by Mrs. Ruth Southern against Cowan Stone Company and another. To review the judgment, the plaintiff brings error.

Reversed and remanded.

Walter M. Haynes, Frank Hickerson, Winchester, for plaintiff in error.

Frazier Roberts & Weill, Chattanooga, Harry C. Templeton, Winchester for defendants in error.

BURNETT Justice.

The trial judge sustained a demurrer to the plaintiff's declaration and dismissed her suit. She has seasonably appealed and assigned error.

The plaintiff charged in her declaration, as amended, that the defendants were the owners and operators of a ramp for loading lime and stone into railroad cars at Anderson Franklin County, Tennessee; that said ramp was approached from a public road by a road leading from said public road to said ramp. 'The road and ramp leading from said public road were built for a road, used by the defendants as a road, and the public generally used said road and ramp as a public road, and the said road and ramp were held out to the public as a public passageway. There was no way to distinguish the line of demarcation between the public road and the road leading onto the ramp.' (Italics ours).

At the end of this ramp which 'was twelve to fifteen feet from the regular public road' was a sudden drop of twelve or fifteen feet onto the railway tracks of the defendant. This roadway and ramp 'were unguarded, had no rail, light guard or other precaution taken to warn the public'.-- 'There was nothing at the end of the ramp to indicate that there was a drop where one would either fall into a railroad car or onto the railroad tracks.' The 'road and ramp appeared more like the public road than the public road itself at night because it was lighter in color' due to fresh rock being strewn on it.

The declaration further charges that:

'On or about the date aforesaid, plaintiff arrived in Anderson, Tennessee, on the midnight train to go to a home her husband had secured for her. Plaintiff had never been to Anderson, Tennessee, and had sent word for her husband to meet her. Upon her arrival and alighting from the train she looked for her husband but he was not at the station. She had been told the general direction of the house in which they were to live and she began traveling in a northerly direction toward the place where she thought the house was. Traveling along the public road she saw the road and ramp bearing to her right, which appeared to her to be the public road. She proceeded along the road and ramp until without warning, she stepped into space, fell twelve or fifteen feet, and landed on the railroad tracks directly under said ramp.'

The demurrer of the defendants is that:

'The allegations show that she was a trespasser upon the private property of the defendants, that she voluntarily left the public road on which she was traveling and came onto the property of the defendants. The allegations show that she was on defendants' property in the night time without any invitation, license or permission, or knowledge of either of the defendants. The allegations likewise fail to show that her injuries came about because of any design or wilful conduct on the part of either defendant. Neither defendant, therefore, owed her any duty whatsoever, and as a matter of law under the allegations in the declaration, she is not entitled to recover against either defendant.'

The trial court concluded that the plaintiff was 'a trespasser or, at best, a licensee' and was therefore 'owed no duty of ordinary care'.

Beginning with our first judicial decisions in this country the courts have uniformly held that the landowner is not liable for harm to trespassers caused by the failure of the landowner to put his land in a reasonably safe condition for the reception of a trespasser. Various reasons have been assigned for so holding. 'The true explanation seems to be merely that, in a civilization based on private ownership, it is considered a socially desirable policy to allow a man to use his own land in his own way, without the burden of watching for and protecting those who come there without permission or right'. Prosser on Torts, page 611.

A number of exceptions to this rule have gradually been adopted by the courts because of an increasing regard for human safety.

The rule above set forth is not applicable when 'a possessor of land who so maintains a part thereof that he knows or should know that others will reasonably believe it to be a public highway * * *'. When he so uses his land the landowner 'is subject to liability for bodily harm caused to them...