Vol. IV.] PITTSBURG, FORT WAYNE, AND CHICAGO R. R. Co. v. BINGHAM. [No. 10. of another's land, and falls over on it to his injury, the owner of the structure is liable. Schwarts v. Gilmore, 45 Ill. 455; Shearm. & Redf. on Neg. par. 498. The principle underlying the cases above cited recognizes the right of the owner of real property to the exclusive use and enjoyment of the same without liability to others for injuries occasioned by its unsafe condition, where the person receiving the injury was not in or near the place of danger by lawful right; and where such owner assumed no responsibility for his safety by inviting him there, without giving him notice of the existence or imminence of the peril to be avoided. In such cases the maxim, Sic utere tuo ut alienum non lædas, is in no sense infringed. In its just legal sense it means, "So use your own property as not to injure the rights of another. Where no right has been invaded, although one may have injured another, no liability has been incurred. Any other rule would be manifestly wrong. Actionable negligence exists only where the one whose act causes or occasions the injury owes to the injured person a duty, created either by contract or by operation of law, which he has failed to discharge. In Burdick v. Cheadle, 26 Ohio St. 393, the owner of a store building had leased it to a tenant, who was in the occupancy of the same, selling goods therein. Certain shelvings and fixtures not properly secured fell, and injured the plaintiff, a customer of the tenant, for which injury the customer brought an action against the landlord. It was said by McIlvaine, J., that there was no privity between the owner of the property and the plaintiff, and that the former owed no duty to the latter which was violated by a careless construction or fastening of the fixtures; and that the fact that the room was to be kept open to the customers of the tenant did not affect the question. But the question naturally arises, to what extent does the right of a railroad company to the control and use of its real property differ from that of a general owner of land not burdened or incumbered with a public charge? What restrictions and limitations are imposed upon the use and enjoyment of the real property of the company that do not exist in the case of the ownership of property not employed for public purposes? These questions are not difficult to answer. The right of the possession and control of the property of a railroad corporation for all purposes contemplated by its charter, and to enable it to accomplish the objects for which it was created, is indispensable to the proper discharge of the duties it owes to the public. By accepting a grant of corporate power from the state, it bound itself to do and perform certain things conducive to the public welfare. And those things consist principally in the duty to carry and transport persons and property from one point on its road to another, under such reasonable rules and regulations as it may prescribe to itself, or as may be prescribed by more general law. The obligation to carry, thus assumed, cannot be disregarded or rejected at pleasure. It is an indispensable condition to the right to exercise corporate functions. The duty to carry is correlative to the existence of the corporate power of the company, and ceases only with a surrender of its corporate privileges. It is, therefore, a right that the public have to enter upon the premises of the company, at points designed or designated for receiving PITTSBURG, FORT WAYNE, AND CHICAGO R. R. Co. v. BINGHAM. [No. 10. Vol. IV.] passengers, and upon compliance with the rules governing the transportation of persons to be carried over its road to such points thereon as they may desire. The right of the public to enter is coextensive with the duty of the company to receive and carry. It, however, cannot be extended beyond this. For all purposes not connected with the operation of its road, the right of the company to the exclusive use and enjoyment of the corporate property is as perfect and absolute as is that of an owner of real property not burdened with public or private easements or servitudes. The case of Nicholson, Administratrix, v. The Erie Railway Co. 41 N. Y. 525, rests upon this principle. The company had left on a branch track four empty cars and one loaded one. The brakes to the four cars were not set or secured, and they were started by a violent wind and ran against the loaded car, propelling it forward and causing it to run against and over the plaintiff's intestate, who was upon the track, killing him. The place where the branch track was constructed was open and unfenced, and was customarily used by the people in the vicinity as they had occasion to use it, without objection by the company. The court instructed the jury that it was the duty of the company to set the brakes, and that if it left the cars without doing so, or otherwise securing them, it was a violation of duty on its part. This instruction was held erroneous. It is said in the opinion that no relation existed between the company and the deceased creating any particular duty, and that the company "had the same unqualified right, which every owner of property has, to do with his own as he pleases, and keep it and use it where and as he pleases, on his own ground, up to the point when such use becomes a nuisance. It is doubtless true that a railroad company, by erecting station-houses and opening them to the public, impliedly license all persons to enter. But it is equally true that such license is revocable at the pleasure of the company as to all persons who are not there on business connected with the road, or with its servants or agents. Commonwealth v. Powers, 7 Met. 596; Nicholson v. The Erie Railway Company, supra, 532. In Harris v. Stevens, 31 Vt. 90, it is said: "The right to enter (a depot) and remain exists only by virtue of, and as incident to, the right to go upon the train, and it is to be extended so far only as is reasonably necessary to secure to the traveller the full and perfect exercise and enjoyment of his right to be carried upon the cars." An implied license to enter a depot creates no additional duty upon the part of the company as respects the safety of the building entered. Its only effect is to make that lawful, which, without it, would be unlawful. Wood v. Leadbitter, 13 M. & W. 838. It is a waiver or relinquishment of the right to treat him who has entered as a trespasser. In Sweeny v. Old Colony & Newport Railroad Company, 10 Allen, 372, the court say: "A licensee, who enters on premises by permission only, without any enticement, allurement, or inducement being held out to him by the owner or occupant, cannot recover damages for injuries caused by obstructions or pitfalls. He goes at his own risk, and enjoys the license subject to its concomitant perils." "No duty is imposed by law on the owner or occupant to keep his premises in a suitable condition for PITTSBURG, FORT WAYNE, AND CHICAGO R. R. Co. v. BINGHAM. Vol. IV.] [No. 10. those who come there solely for their own convenience or pleasure, and who are not expressly invited to enter, or induced to come upon them by the purpose for which the premises are appropriated or occupied." The inducement here spoken of must be equivalent to an invitation to enter. Carlton v. Franconia Iron & Steel Co. 99 Mass. 216. Mere permission is neither inducement, allurement, nor enticement. The case of Tobin v. The P., S. & P. R. R. Co. 59 Maine, 183, cited by defendant's counsel, instead of supporting the defendant's claim, sustains the opposite. The plaintiff was a hackman, carrying passengers to the cars, and while stepping from his carriage to the platform was injured by a defect in the latter, occasioned by a want of ordinary care in the company. A recovery was sustained, on the ground that a "hackman carrying passengers to the railroad depot for transportation, and aiding them to alight upon the platform of the company, is as rightfully upon the same as the passengers alighting." A recovery was also sustained in Toledo, Wabash & Western Railway Co. v. Grush, 67 Ill. 262, for an injury to the defendant, resulting from stepping accidentally through a hole in the platform, carelessly left open, the defendant being at the depot looking for freight belonging to his employer. The case of Gillis v. Pennsylvania Railroad Co. 59 Penn. St. 129, fully sustains the position and claim of the plaintiffs. It was there held that the platform of a railroad company, at its station, is in no sense a public highway; that it is not dedicated to public use; that it is for the accommodation of passengers; but, being uninclosed, persons have the privilege, but not the legal right, of walking over it for other purposes; and that "the owner is not liable to a trespasser, or one who is on his property by mere permission or sufferance, for negligence of himself or agents. Applying the principle thus settled to the present case, it leaves but little doubt that the court was in error in holding the company to such a measure of care, or to such a rule of responsibility. In the circumstance supposed - the presence of the deceased at the depot by the mere sufferance or permission of the company-it was under no legal obligation to protect him from danger, not known to exist, although the unsafe condition of the building that gave rise to such danger was a consequence of a failure to exercise ordinary care, prudence, and skill in its structure or in its maintenance. Carlton v. Franconia Iron & Steel Co. 99 Mass., supra. His presence at the depot was uninvited, and the company did not owe to him the duty to keep its station-house in a safe and secure condition. Its negligence, if any, was necessarily negligence of omission, negligence in having omitted the exercise of ordinary care to ascertain the dangerous character of the building. If the question was between the company and its employees, whose duty it was to occupy the building, or if it arose between the company and those who came to take passage on its cars, or to accompany a friend about to depart, or to await the arrival of one expected, or to engage in any business connected with the operation of the road, or business with those engaged in its service and having a legal right to be and remain there; or, if the company had possessed knowledge, in fact, of the dangerous character or condition of the building, and gave no notice thereof to those it permitted to enter or occupy, other con Vol. IV.] PITTSBURG, FORT WAYNE, AND CHICAGO R. R. Co. v. BINGHAM. [No. 10. siderations would arise. It, however, is not charged with intentional wrong, nor with that gross or reckless misconduct that is difficult to distinguish from it, and therefore is equivalent to it. All it could have done, when the storm approached, to save the deceased from harm, was to see that he left the building, and thereby escaped the danger. This was not a legal duty. He was injured by no act of the company, or its servants or agents, occurring at the time. The fault was of past origin, and negative in character, consisting in not previously overhauling the building, ascertaining its defects and weakness, and supplying the needed strength and support. For this omission, or its resulting consequences, a stranger has no right to call it to account. Judgment of the district court and of the common pleas reversed, and cause remanded.1 1 The case of Pittsburg, Ft. Wayne & Chicago Railway Co. and Pennsylvania Railroad Co. v. Brigham, to be reported, also, in 29 Ohio St., was as follows: On the 5th of December, 1870, a violent storm blew down part of the roof of the Massillon station-house, belonging to the Pittsburg, Ft. Wayne, and Chicago Railway Company, and Brigham was seriously injured by the falling materials. At the time of the occurrence the Pennsylvania Railroad Company was operating the road, and using the building, as lessee under the first-named company, under the statute which makes the lessor company equally liable with the lessee for injuries occasioned in using and operating the road. Brigham brought his action against both companies, charging the lessor company with negli gence in not constructing and securing the roof of the building in a proper and substantial manner, and the lessee company with negli gence in maintaining and using it in its insecure condition. The negligence was denied by both companies, and the cause was tried to a jury, who returned a verdict for the plaintiff. A motion for a new trial, on the ground that the verdict was against the law and the evidence, was overruled by the court, and judgment was entered upon the verdict. This judgment was subsequently affirmed in the district court, and the plaintiff in error sought to reverse the judgments of both courts. A bill of exceptions, embodying all the testimony, forms part of the record. From this it appears that the roof in question had stood eighteen years at the time of its fall, and there was a conflict of testimony as to whether it was constructed on a proper plan and properly fastened for the purpose of resisting storms some eight or ten experts testifying in the affirmative and some four or five in the negative. There was also a conflict of testimony as to the severity of the storm, as compared with other storms which had previously occurred in the locality. At the close of the testimony the defendants requested the court to instruct the jury that if the roof of the station-house, at the time of the accident, was of sufficient construction and strength to withstand the ordinary and common storms of the locality the defendants were not liable; that the defendants were not bound to foresee and provide against extraordinary storms; and that they were not liable unless they had failed to use that care which prudent men ordinarily employ in such matters. These instructions the court refused to give as requested, and instead thereof gave the following: "The defendants were guilty of negligence if they failed, in constructing or maintaining said station-house, to use that degree of care which a man of ordinary prudence is accustomed to employ in constructing or maintaining a building for his own use for the same or like purposes, to guard against danger from storms of wind, which might reasonably have been anticipated. If they used that care, they were not negligent, and cannot be held liable, although they are corporations. "And further, you must find that the storm which caused the injury was not unprecedented in that locality, but was of such character that it might reasonably have been expected to occur at that place. "The defendants were bound to provide against storms which could reasonably have been anticipated, though likely to occur but rarely. 66 But defendants were not bound to provide against a storm of wind so extraordinary in power that no experience could have anticipated its occurrence. And if the storm in question was of this character, the plaintiff cannot recover." This instruction of the court, it is now claimed, was erroneous. There are also various other grounds of error alleged, but it is not necessary to state them as they were not passed upon by the court. WELCH, C. J. . . . . If the defendants, in the construction and maintenance of the building, used that degree of care which men of ordinary prudence are accustomed to employ in like business, they were not liable. Had the court stopped with this proposition there clearly would have been no error in the charge. But the court went further, and told the jury that In a criminal case, a witness, who testifies to the doing of the act charged against the defendant, may be asked who the person was who did it, and no exception lies to the admission of his answer, "That man," pointing to the defendant. On an indictment for larceny, the evidence tended to prove that a boy was sent to the office of A. with money for him; that he found B. in the office, who, on being asked, said he was not A., and that he was going to stay until A. came in; and that the boy handed the money to B., on his signing a receipt therefor, which he did in the name of A. by C., signing a false name instead of his own. The defendant asked the judge to rule that" to constitute larceny, there must be an appreciative act of personation, and that if B. said he was not A., there was no larceny." The judge gave this instruction, with the addition, "unless B. held out some inducement to the boy to lead him to believe that he had the right to sign the receipt and receive the money for A." Held, that the defendant had no ground of exception. On the trial of an indictment for larceny, there was evidence identifying the prisoner as the person who had committed the act at the office of A., by a boy who was sent to that office with a receipt for A. to sign. On the receipt was written "twenty minutes past two," denoting the time when the boy started on his errand. A witness for the government, who had an office in the same building as A., testified that at about thirteen minutes to two o'clock he passed the door of A.'s office and saw the prisoner there alone. Held, that the defendant had no ground of exception to the admission of this evidence; and that the government, by putting the receipt into the case, was not bound to concede that the interview between the prisoner and the boy was after twenty-two minutes past two o'clock. At the trial of an indictment for larceny, it appeared that a boy was sent to an office with a package, and that a man in the office took the package and signed a receipt for it. The government offered in evidence a receipt for a watch, admitted to be signed by the defendant. The judge instructed the jury that "the only legitimate use of the watch receipt was for the comparison of hands, and if the jury believed that the same person wrote the watch receipt and the name attached to the receipt which the boy took, it was evidence tending to show that the man who was in the office, of whom the boy testified, was the defendant." Held, that the defendant had no ground of exception. At the trial of an indictment for larceny, alleging the property stolen to be in "the District Telegraph Company, a corporation duly established by law," it appeared that the District Telegraph Company, a corporation organized under the general law of New York for the incorporation of telegraph companies, received a package of money to deliver, and sent a boy to make the delivery. The government put in evidence a copy of the Statutes of New York, containing this general law, and also an attested copy of the articles of association, under which the company was organized, the defendants were bound to provide against all storms which could reasonably have been anticipated, and by plain implication told them that the defendants were bound to provide against all storms that were not "unprecedented," or that were of a kind that had ever happened within the range of human "experience." Taken by itself, this latter part of the charge is clearly erroneous, and in conflict with the rule at first, and, as we think, correctly laid down by the court. The whole charge, taken together, to say the least, was calculated to mislead the jury. Two rules, apparently in conflict with each other, were laid down for their guidance, and it is impossible to know which they followed. The general custom of prudent persons in such cases, and not the absolute requirements of the occasion, is the true standard by which the defendants should be tried. They were only bound to come up to the fair average of careful and prudent men. Judgment reversed, and cause remanded. |