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Vol. IV.]

PERLEY v. Boston, CONCORD, AND MONTREAL RAILROAD Co.

[No. 10.

manner.

river was unnecessarily obstructed or diverted by the defendants' embankments at either end of said bridge, the defendants did not make a reasonable and proper use of their rights if thereby the plaintiff had been injured.

These instructions were fully and completely contained in the charge, and I do not think, if given particularly, they would have added anything to its force. The legal position advanced in them -- that unnecessary obstructions were unreasonable — could not have escaped the jury listening to the charge.

The fifth request was as follows:

V. That if the defendants unreasonably diverted the natural current of the river upon the plaintiff's land, and such diversion was the proximate or substantial cause of injury to the plaintiff, they are liable, though other causes for which they are not in fault may have contributed to the injury.

This request was clearly objectionable, because it made no distinction between contributory negligence of the plaintiff and other contributing causes to the injury.

The sixth instruction requested was to the effect that if no damages were awarded for the wharf lot by the commissioners, and if the erection of the defendants' bridge has damaged the plaintiff in the beneficial use, occupation, or enjoyment of said lot, they are liable in this action for such damage, even though said bridge was constructed in a proper

The court instructed the jury to the effect that the award of damages by the commissioners must be taken to be conclusive, and that no action can be maintained to recover further damages. This instruction is well supported by the following cases : Aldrich v. Cheshire Railroad Co. 21 N. H. 359; Clarke v. Railroad, 24 N. H. 114; Dearborn v. Railroad, 24 N. H. 179; and is directly in contradiction to the foregoing request, which, therefore, was rightly refused.

For the reasons above stated the verdict must be set aside.

LADD, J. If the plaintiff had wantonly erected his wharf where he did, with the intention of exposing his property to destruction and bringing damage upon himself, in order that by so doing he might aggravate the consequences of the defendants' wrongful act in building their bridge in an improper or unsuitable manner, a different question would be presented. But it seems to me the charge does not bear that construction. It is true, the jury were told that the plaintiff had no right to take advantage of the acts of the defendants to their prejudice, which, taken by itself, looks somewhat in that direction, although it is not perhaps entirely clear what was meant by taking advantage of the defendants' acts to their prejudice. But the difficulty is, the jury were further told that if the defendants' acts were wrongful, nevertheless, if the plaintiff would not have been injured had he allowed his property to remain as it was before the wrongful acts of the defendants, the defendants were not liable. The effect of which was, to deprive the plaintiff of all right to make a reasonable and customary use of his property in order to protect the defendants against the natural consequences of their own illegal

He must so use his own as not to receive injury from the miscon

act.

Vol. IV.)

PERLEY v. Boston, CONCORD, AND MONTREAL RAILROAD Co.

(No. 10.

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duct and wrong of his neighbor. This is not only an inversion of the rule Sic utere tuo ut alienum non lædas, but it adds the extraordinary mandate that you shall not use your own at all, if by so doing you incur a liability to be injured by the trespass or other wrongful act of another.

Some remarks of Beardsley, J., in Cook v. The Champlain Transportation Co. 1 Den. 91, 100, 101, are so pertinent that I quote them : “ It would be a startling principle indeed that a building, placed in an exposed position on one's own land, is beyond the protection of the law; and yet it comes to this result upon the argument urged in this case. A land-owner builds immediately on the line of a railroad, as he has an unquestionable right to do; it may be an act of great imprudence, but in no sense is it illegal. Is he remediless if his house is set on fire by the sheer negligence of an engineer in conducting his engine over the railway? ... The owner of a lot builds upon it, although in close proximity to the shop of a smith. The house is more exposed than it would be at a greater distance from the shop: but is this to exempt the smith from the obligation of care, and to screen him from the consequences of his own negligence ?” Several other apt illustrations are given, and the learned judge concludes: “We may run through every imaginable variety of position, some of more and some of less exposure and hazard, and we must at last, I think, come to the conclusion that, while a person confines himself to a lawful employment on his own premises, his position, however injudicious and imprudent it may be, is not therefore wrongful; and that his want of due care and judgment in its selection can never amount to negligence, so as thereby to deprive him of redress for wrongs done to him by others."

I think it is impossible to sustain this part of the charge, and that for this reason the verdict must be set aside.

The ruling, that the award of the commissioners must be held to cover all damages which would result to the plaintiff from a suitable and proper construction of the railroad across his lands, was correct.

As to the requests, some of them seem to be quite unobjectionable ; but at the same time, with the exception already pointed out, the charge appears to cover the whole ground, and to include everything in the requests that was germane, or called for by the facts in the case.

SMITH, J. Under the instructions given, the jury may have found that the defendants did not construct their bridge in a suitable manner, and that the plaintiff's wharf was properly constructed. The instructions denied to the plaintiff the right to make a lawful use of his land except at his own risk, if he would thereby receive injury from the defendants' bridge, although improperly constructed. That they were roneous in this particular it seems to me cannot admit of doubt for reasons more fully explained by my brethren, and which need not be repeated.

If the defendants properly constructed and maintained their bridge, and if the necessary result of the plaintiff's constructing his wharf was that the damages which did happen to him would have happened, the defendants are not liable, because it must be considered that all that was taken into the account and considered in the original award of damages; and the instructions on this part of the case were therefore correct.

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Vol. IV.)

PittsBURG, FORT WAYNE, AND Chicago R. R. Co. v. Bingham.

(No. 10.

The instructions to the jury in other respects were correct, - just what were called for by the facts appearing in the evidence, and admirably calculated to aid the jury in gaining a clear apprehension of the law applicable to the case. They covered the special instructions requested by the plaintiff, so far as they were called for. But for error in the instructions, as above explained, the verdict must be set aside, and

A new trial granted.

SUPREME COURT OF OHIO.

(To appear in 29 Ohio St.)

RAILROAD. — INJURY TO STRANGER BY FALLING OF STATION-HOUSE. —

NEGLIGENCE,

PITTSBURG, FT. WAYNE & CHICAGO RAILWAY CO. v. BINGHAM.

A railroad company is not liable for an injury to a person resulting from its failure to

exercise ordinary skill and care in the erection or maintenance of its station-house, where, at the time of receiving the injury, such person was at such station-house by mere permission and sufferance, and not for the purpose of transacting any business with the company or its agents, or on any business connected with the operation of the road.

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The original action was brought by the defendant in error as the personal representative of her deceased husband, Wallace B. Bingham, against the plaintiff in error, under the act requiring compensation to be made for causing death by a wrongful act, neglect, or default, passed March 25, 1851.2 S. & C. 1139.

The deceased was at the plaintiff's station-house in Massillon, on December 5, 1870, and while there was struck by a portion of its roof, torn off by wind, and blown, during a violent storm, from the building, with such force against and upon him as to cause his death. The plaintiffs in error-one the owner of, and the other the lessee operating the railroad-were charged with the wrongful act and neglect alleged to have resulted in the death of Bingham, consisting in negligence in the construction and maintenance of said station-house; the plaintiff below claiming it to have been defectively and unskilfully constructed, and maintained and used in an unsafe and insecure condition.

Issue was joined upon the question of negligence, and the cause submitted to a jury. Upon the trial, evidence was given which tended to show that the deceased, on the day, and at the time of receiving the injury resulting in death, was at said passenger depot or station-house, not for the purpose of transacting any business with the company, its agents, or

, servants, or with any one rightfully there, nor on business in anywise connected with the operation of the road; but being out of employment was there for pastime or pleasure, or as a place of safety during the continuance of what appears to have been a violent storm. After the testi.

Vol. IV.)

PITTSBURG, FORT WAYNE, AND Chicago R. R. Co. v. BINGHAM.

(No. 10.

was

mony was concluded, the court instructed the jury, in substance, that if the deceased was at, in, or near said depot, not on any business, but “ there by the tacit permission of, and without objection from,” the company operating the road, " its agents, or servants, and there peaceably and innocently, relying upon such station-house as a place of security,” and was free from negligence contributing to his injury and consequent death, and ordinary care and skill were not employed in the construction and maintenance of the station-house, but from want of such care and skill it was defectively and insufficiently constructed, and imprudently and negligently maintained and used, and by reason thereof the deceased lost his life, the company was liable. The defendant below excepted to that part of the charge that held it to be the duty of the company to have exercised due care in the construction and maintenance of the building, if the deceased entered and was there by “mere permission and without objection ;” and from a judgment against it, carried the cause to the district court, where the judgment of the common pleas was affirmed. A petition in error is now prosecuted here to reverse both judgments. Only so much of what occurred at the trial is stated as is necessary to show the relevancy of the question considered and decided.

J. T. Brooks, for plaintiff in error: The duty upon the part of the defendants to exercise care toward the plaintiff depended upon the question whether the plaintiff was in the exercise of a legal right at the time of the injury. And it made no difference that he may have been there by the silent permission or license of the defendants. If he was not there by legal right, he took the premises as he found them, with all the concomitant perils. Sweeny v. Old Colony, fc. Railroad Company, 10 Allen, 368, 372; 1 Red. on Railways, 474, sec. 126, par. 15; Zoebisch v. Tarbell, 10 Allen, 385; Griffiths v. L. f N. W. R. R. Co. 14 Law Times (N. S.), 797 ; S. & R. on Neg. sec. 447 and notes; Bancroft v. B. f W. R. R. Co. 97 Mass. 275; Wharton on Neg. sec. 352; Gillis v. Penn. R. R. Co.8 Am. Law Reg. (N. S.) 729; 59 Penn. St. 129; 22 How. (U. S.) 461; 24 Ib. 307 ; 2 Curtis C. C. 141; 9 Wall. 146; 2 Har. 481; 3 Blatch. C. C. 37, 276, 517; 14 N. H. 307; S. & R. on Neg. secs. 308–310; Kay v. Penn. R. R. Co. 65 Penn. St. 269.

W. A. Lynch, for defendant in error. Did the court err in permitting a recovery if the jury found Bingham at the depot by the tacit permision of, and without objection from, the defendant, the Pennsylvania Railroad Company, its servants, or agents, if there peaceably and innocently, relying upon such station-house as a place of security.

The whole argument turns on the question: Did the company owe any duty to any one at the depot, as supposed by the proposition above stated? It is claimed that it owed to such a one no duty, and therefore negligence cannot be alleged. I admit there is, in such case, no duty depending on contract, or growing out of any special relation or privity between the parties; but the law recognizes many duties of property-owners independent of such relation or privity. Callahan v. Warne, 40 Mo. 135; Johnson v. Patterson, 14 Conn. 1; Kerwhacker v. R. R. Co. 3 Ohio St. 172; 65 Penn. St. 269; Young v. Harvey, 16 Ind. 314; 44 Penn. St. 375; 7 Met. 602; 1 Duer, 571 ; 66 Penn. St. 345; Baker v. Portland, 58

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Vol. IV.]

PITTSBURG, Fort WAYNE, AND Chicago R. R. Co. v. BINGHAM.

(No. 10.

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Me. 199; Spofford v. Horton, 3 Allen, 176; Welch v. Wesson, 6 Gray, 505; Steele v. Burkhardt, 104 Mass. 59; Kearns v. Lowdon, Ib. 63; Hall v. Corcoran, 107 Mass. 251; Sutton v. Wanwatosa, 29 Wis. 21.

BOYNTON, J. We find in the record of the present case among the questions argued but one deserving consideration; and that one may be stated as follows:

" Is a railroad company bound to exercise ordinary care and skill in the erection, structure, or maintenance of its station-house or houses, as to persons who enter or are at the same, not on any business with the company or its agents, nor on any business connected with the operation of its road; but are there without objection by the company and therefore by its mere sufferance or permission ?” We must give to this question a negative answer. A careful examination of the adjudged cases bearing on the point has led to the discovery of none supporting, much less sustaining, the proposition contended for by the defendant in error. The question in its legal bearings is kindred to the one decided and settled in a class of cases, of which Hounsell v. Smith, 7 C. B. N. S. 731, is an example. In that case the plaintiff fell into a quarry left open and unguarded on the uninclosed waste lands of the defendant, over which the public were permitted to travel. In an action for the injury, it was held that the owner was under no legal duty or obligation to fence or guard the excavation, unless it was so near to a public road or way as to render it dangerous to travel thereon. The court say:

" The person so travelling over such waste lands must take the permission with its concomitant conditions, and, it may be, perils.” That an owner is not liable for an injury from pitfalls or excavations to one who enters his premises uninvited, and by mere license or permission, is well sustained by the authorities. 3 Best & Sm. 244; Hardcastle v. The South Yorkshire Ry. Co. 4 Hurlst. & N. 67; Sweeny v. Old Colony f Newport R. R. Co. 10 Allen, 372; Knight v. Abert, 6 Barr, 472; Roscoe's Ev. at Nisi Prius, 719.

In Southcote v. Stanly, 1 Hurlst. & N. 247, L. J. 25 Ex. 339, a visitor at defendant's house was injured by the falling of a glass door, through the negligence of the defendant. It was held that the plaintiff having, pro hac vice, become an inmate of the defendant's family, a rule similar to that of fellow-servants applied. In Peirce v. Whitcomb, 48 Vt. 127, plaintiff and defendant went to defendant's barn, at night, to measure up some oats, which the defendant sold to the plaintiff for the latter's accommodation, having none he wished to sell. While the defendant was looking for a measure, the plaintiff, walking about the barn in the dark, fell through a hole in the floor, and was injured. It was held he could not recover.

But if such dangerous place or pitfall or excavation is by the side of a public road or footway, along or over which the public have the right, and are accustomed to travel, it becomes the duty of the owner to adopt suitable and reasonable precautions to guard the public against injury resulting from the proximity of such dangerous place to the highway thus rightfully enjoyed. Barnes v. Ward, 67 Eng. C. L. 393 ; Firmstone v. Wherley, 2 D. & L. 208, Pollock, B.; Corby v. Hill, 4 C. B. N. S. 556; Hargreaves v. Deacon, 25 Mich. 5; Young v. Harvey, 16 Ind. 314 ; Mullen v. St. John, 57 N. Y. 567. Or, if a structure is erected near the line

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