William E. Amblo's Adm'x v. Vermont Associated Petroleum Corporation

• Decision Date: 19 January 1929
• Citation: 144 A. 460,101 Vt. 448
• Parties: WILLIAM E. AMBLO'S ADM'X v. VERMONT ASSOCIATED PETROLEUM CORPORATION
• Court: Vermont Supreme Court

144 A. 460

101 Vt. 448

WILLIAM E. AMBLO'S ADM'X v. VERMONT ASSOCIATED PETROLEUM CORPORATION

Supreme Court of Vermont

January 19, 1929

October Term, 1928.

Negligence---Breach of Duty to Person Injured Essential To Maintenance of Action---Trespasser.

1. An action for negligence will not lie, unless relations of parties are such that person charged owes duty to person injured, either directly, or to a class to which he belongs.

2. In

ACTION OF TORT for negligence, although use and maintenance of grease pit at automobile filling station may have been a breach of duty which defendant owed to lessee of an adjoining tenement, or to persons going to and from such tenement, that fact did not avail plaintiff seeking to recover for death of her intestate, who was a trespasser upon defendant's premises when he fell into pit and received injuries from which he died.

3. In such action, where plaintiff's intestate was a trespasser on defendant's premises when he fell into a grease pit used and maintained there and was injured, no invitation had been extended to him, the purpose of his entry was one of his own for which place was not intended to be used or equipped therefor, and his presence there was unknown to defendant and nothing appeared requiring defendant to anticipate his presence there, held that under such circumstances defendant owed him no duty, and plaintiff could not recover.

ACTION OF TORT for negligence to recover for death of plaintiff's intestate. Plea, general issue. Trial by jury at the March Term, 1928, Rutland County, Sherburne, J presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment reversed, and judgment for the defendant to recover its costs.

Lawrence Stafford & Bloomer for the defendant.

Jones & Jones for the plaintiff.

Present: POWERS, SLACK, MOULTON, and CHASE, JJ. and WILCOX, Supr. J.

OPINION

POWERS

In the fall of 1926, Harry J. Novak and his wife, May, leased a part of their real estate to Wilbert E. and G. N.E. Burditt, doing business as partners under the name Burditt Brothers. The defendant is an assignee of the lease. The premises covered by the lease were situate in the city of Rutland, and included all that part of a larger parcel that lies on the Main Street side of the Novak property. As the lease describes the property, and as it is shown in a blueprint therein referred to, it includes all the Novak land lying on Main Street, together with the buildings thereon. By the terms of the instrument, the lessees were to erect and maintain on the granted premises a gasoline filling station and grease pit. The latter was to be located "at such place on said premises as may be agreed upon by the parties hereto." Later, the parties located the pit just south of the so-called Creamery Building on the premises granted, and it was there constructed. It is a pit twelve feet long, about two and one-half feet wide, and four and one-half feet deep. It is of cement, and has a cement curbing around it which rises about six inches above the surface of the surrounding land. The pit itself is rectangular, but the curbing comes to a point at the end toward the street. The curbing on the north side is five feet from the Creamery Building, and on the south side, it is three feet and ten inches from the fence bounding the premises on the side.

There is a tenement in the second story of the Creamery Building which at the time of the accident here involved was occupied by a Mrs. Woodruff. A flight of stairs attached to the south side of the building affords access to this tenement, and persons going to or from the same pass along the south side of the building, between it and the grease pit.

On November 4, 1927, the day after the great flood, the decedent, William E. Amblo, at about seven o'clock in the evening, called at the Creamery Building and made a trivial purchase. At this time, the lights all over the city were out as a result of the flood. After making his purchase, Amblo went out into the darkness, and instead of passing into the street he went around the south end of the building to urinate. In some way, he fell into the pit and suffered injuries from which he died. There was no toilet of any kind south of or to the rear of the Creamery Building, and there was no evidence that any other person, either before or since this accident, went into the vicinity of the pit on errands of the kind that led the decedent around there.

The trial below having resulted in a verdict and judgment for the plaintiff, the defendant brings the case here for review.

At the close of the evidence, the defendant moved for a directed verdict on various grounds, one of which was that the record shows no...