Tex., O. & E. R. Co. v. Mccarroll
| Decision Date | 21 September 1920 |
| Docket Number | Case Number: 10368 |
| Parties | TEXAS, O. & E. R. CO. v. McCARROLL. |
| Court | Oklahoma Supreme Court |
¶0 1. Negligence -- "Licensee" -- Consent of Owner.
To make one a licensee upon the premises or property of another, it must be shown that he is there by permission or authority of the owner, or his authorized agent. The permission and authority amounting to a license must be expressly or impliedly granted and mere sufferance or failure to object to one's presence upon another's premises is insufficient within itself to constitute a license, unless under such circumstances that permission should be inferred.
2. Negligence--"Invitation."
Neither sufferance, nor permission, nor passive acquiescence, is equivalent to an invitation.
3. Railroads--Care Required--Boy Riding on Pilot Step of Engine--Invitee.
The permission of a railroad company's night watchman for plaintiff to assist him in his work, and to ride on the pilot step of a steam engine, did not make plaintiff an invitee, it appearing that the night watchman had no authority to invite plaintiff to assist him or to permit him to occupy a place on the engine pilot.
4. Same--Licensee.
The permission of the railway company's night watchman, in violation of the ruler and regulations of the company and his general instructions, to a 15 year old boy to ride on the pilot step of an engine, operated by the watchman, did not make the boy a licensee.
5. Same--Duty to Trespasser.
Although a trespasser is a wrongdoer, and courts do not ordinarily aid him, nevertheless, the owner of the premises (the railroad company in this case) owes him the duty not to wantonly and willfully injure him, and if discovered in a perilous position, it owes him the duty to exercise ordinary care to avoid injuring him.
6. Same--Boy Trespasser- -Negligence.
If a 15 year old trespasser, riding on the pilot step of an engine on his own volition or with permission of the night watchman in charge of the engine, for the purpose of signaling the watchman, was capable or apparently capable of exercising judgment and discretion and taking care of himself under the circumstances, it was not negligence for the watchman to run the engine.
7. Negligence--Care Required As to Children.
While some authorities, on the supposed analogy to the rule of the criminal law, hold that a child between the ages of seven and 14 years is presumptively incapable of exercising judgment and discretion, and that after he has attained the age of 14 the contrary presumption prevails, it cannot he universally presumed that persons at a definite age, say 14 years, pass suddenly from incapacity to full capacity and discretion. There is no foundation for such a presumption, and the better rule is that it is a question for the jury to determine, without regard to any arbitrary presumption, whether the particular person has capacity to understand the danger and ability to take care of himself under the circumstances.
8. Same--Duty to Trespasser in Peril.
The age, ability, and competency of a trespasser are immaterial when the master's servants discover him in a position of peril from which he cannot apparently extricate himself or take care of himself under the circumstances.
9. Railroads--Duty to Boy Riding on Engine Pilot Step--Negligence--Question for Jury.
Whether or not it was negligence to start and run an engine with a boy between the ages of 15 and 16 years standing on the pilot step is a question for the jury.
Error from District Court, McCurtain County; C. E. Dudley, Judge.
Action by Harvey L. McCarroll, a minor, by his next friend, L. D. McCarroll, against the Texas, Oklahoma & Eastern Railway Company for personal injuries. Judgment for plaintiff, and defendant brings error. Affirmed.
Ames, Chambers, Lowe & Richardson, H. M. Kirkpatrick, and John S. Kirkpatrick, for plaintiff in error.
Ledbetter, Stuart, Bell & Ledbetter, for defendant in error.
¶1 Defendant contends that the plaintiff was either a bare licensee or trespasser; that he was of sufficient age to be charged, as a matter of law, with having assumed the risk incident to the dangerous position he occupied on the pilot step of the engine at the time the watchman moved the engine, and that, being a trespasser or licensee, it owed him no duty except that it should not wantonly or willfully injure him, and should exercise ordinary care not to injure him after discovering him in a perilous position. Defendant contends that the watchman's conduct in permitting plaintiff to assist him and occupy the dangerous place on the pilot step of the engine was wholly unauthorized, beyond the scope of his authority, and consequently the proximate cause of plaintiff's injury was either the unauthorized conduct of the watchman in permitting the boy to assist him, or the act of the plaintiff in falling off the engine; that it is admitted by plaintiff that the injury was not occasioned by any defect in the road-bed or machinery or method of operating the engine. Defendant cites a number of cases, notably Daugherty v. Chicago, M. & St. P. R. Co. (Iowa) 14 L.R.A. (N.S.) 590, holding that the master is not liable for the unauthorized acts of his employee in permitting a child to occupy a dangerous position on the master's vehicle or premises. See, also, Foster-Herbert Cut Stone Co. v. Pugh (Tenn.) 91 S.W. 199, 4 L.R.A. (N.S.) 804; Schulwitz v. Delta Lumber Co., 126 Mich. 559, 85 N.W. 1075; Mahler v. Stott 129 Mich. 614, 89 N.W. 340; Formall v. Standard Oil Co. (Mich.) 86 N.W. 946; Curtis v. Tenino Stone Quarries, 37 Wash. 355, 79 P. 955; Buch v. Amory Mfg. Co., 69 N.H. 257, 76 Am. St. Rep. 163, 44 A. 809; Bowler v. O'Connell, 162 Mass. 319, 44 Am. St. Rep. 359, 38 N.E. 498; Flower v. Pennsylvania R. Co., 69 Pa. 210, 8 Am. Rep. 251; Keating v. Michigan Central R. Co. (Mich.) 37 Am. St. Rep. 328.
¶2 While sometimes difficult to distinguish a license from an invitation, it is clear from the record in this case that the plaintiff was neither a licensee nor invitee. A license implies permission or authority. The permission and authority amounting to a license must be either expressly or impliedly granted. A mere sufferance or failure to object to one's presence upon another's premises is not sufficient within itself to constitute a license, unless under such circumstances that permission should be inferred: Elliott on Railroads, vol. 3, sec. 1245. Neither sufferance, nor permission, nor passive acquiescence, is equivalent to an invitation. Elliott on Railroads, vol. 3, secs. 1154 and 1249. The permission on the night watchman for plaintiff to assist him and ride on the pilot step of the engine did not make plaintiff an invitee. The night watchman had no authority to invite the plaintiff to assist him or to permit him to occupy the place on the engine pilot step. That is clear. Forbrick v. General Electric Co., 92 N.Y.S. 36; Larmore v. Crown Point Iron Co., 101 N.Y. 391, 54 Am. Rep. 718; Beck v. Carter, 68 N.Y. 283, 23 Am. Rep. 175. The measure of the railroad's duty to an invitee is not involved in this case, and we will pass that by. It is also clear that the plaintiff was not a licensee. Plaintiff had no permission from anyone having the slightest authority to grant him permission to be on or about the engine, and it is not shown that any authorized agent or servant of the defendant either expressly or impliedly permitted the plaintiff to be on or about the engine, and being there in violation of the rules of the company, he was not a licensee. Bouvier's Law Dictionary (3d Ed.) vol. 2, p. 1974; Means v. Southern Calif. R. Co., 144 Cal. 473, 1 Ann. Cas. 206, 77 P. 1001; A., T. & S. F. R. Co. v. Cogswell, 23 Okla. 181, 99 P. 923; Midland V. R. Co. v. Littlejohn, 44 Okla. 8, 143 P. 1; Brown v. Boston & M. R. Co. (N.H.) 64 A. 194; Norfolk & W. Ry. Co. v. Denny's Admr., 106 Va. 383, 56 S.E. 321. Plaintiff was not upon the engine to transact any business between himself and defendant. He got on the engine on his own volition, uninvited, in violation of the rules of the company, and was a trespasser. But whether he was a trespasser or bare licensee makes no difference. If he was a mere licensee, the defendant owed him no legal duty except not to wantonly or willfully injure him and to exercise ordinary care not to injure him when found in a perilous position. Plaintiff's counsel contend that, although the watchman had no authority to permit the boy to ride on the engine, and 'although plaintiff may be treated as a trespasser, nevertheless, the defendant is responsible for the conduct of the watchman in moving the engine with the plaintiff standing on the pilot step; that no matter how the boy got on the engine, whether at the invitation of the watchman or on his own motion, the defendant owed him the duty to exercise ordinary care not to injure him; that the watchman in moving the engine was acting in the line of his service and in the scope of his authority, and that when he discovered the boy on the pilot step of the engine, it then became the duty of the watchman to put the boy off, and that the failure to discharge that duty before moving 'the engine was the proximate cause of the boy's injury. The law is well .settled in this state that, although a trespasser is a wrongdoer, and the courts do not ordinarily aid a wrongdoer, nevertheless, the owner of the premises cannot justifiably, wantonly, willfully or maliciously mistreat or injure him; also that the owner of the premises is responsible for the failure to use ordinary care to avoid injuring the trespasser after discovering his perilous position. That rule is pretty well settled in this jurisdiction. Thorp v. St. Louis & S. F. R. Co., 73 Okla. 123, 175 P. 240; Atchison, T. & S. F. R. Co. v. Miles, 69 Okla. 138, 170 P. 896; Wilhelm v. M., O. & G. R. Co., 52 Okla. 317, 152 P. 1088. In starting and running the engine, the...
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