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Vol. IV.) PITTSBURG, FORT WAYNE, AND Chicago R. R. Co. v. BINGHAM. [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 of 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 strength to withstand the ordinary and comRailway Co. and Pennsylvania Railroad Co. v. mon storms of the locality the defendants were Brigham, to be reported, also, in 29 Ohio St., not liable; that the defendants were not bound was as follows:

to foresee and provide against extraordinary On the 5th of December, 1870, a violent storms; and that they were not liable unless storm blew down part of the roof of the Mas- they had failed to use that care which prudent sillon station-house, belonging to the Pitts- men ordinarily employ in such matters. burg, Ft. Wayne, and Chicago Railway Com- These instructions the court refused to give pany, and Brigham was seriously injured by as requested, and instead thereof gave the folthe falling materials. At the time of the oc- lowing:currence the Pennsylvania Railroad Company “The defendants were guilty of negligence was operating the road, and using the build- if they failed, in constructing or maintaining ing, as lessee under the first-named company, said station-house, to use that degree of care under the statute which makes the lessor com- which a man of ordinary prudence is accuspany equally liable with the lessee for injuries tomed to employ in consiructing or maintainoccasioned in using and operating the road. ing a building for his own use for the same or Brigham brought his action against both com- like purposes, to guard against danger from panies, charging the lessor company with negli. storms of wind, which might reasonably have gence in not constructing and securing the been anticipated. If they used that care, they roof of the building in a proper and substantial were not negligent, and cannot be held liable, manner, and the lessee company with negli- although they are corporations. gence in maintaining and using it in its inse. “And further, you must find that the storm cure condition. The negligence was denied by which caused the injury was not unprecedented both companies, and the cause was tried to a in that locality, but was of such character that jury, who returned a verdict for the plaintiff. it might reasonably have been expected to ocA motion for a new trial, on the ground that cur at that place." the verdict was against the law and the evi. “The defendants were bound to provide dence, was overruled by the court, and judg. against storms which could reasonably have ment was entered upon the verdict. This judg. been anticipated, though likely to occur but ment was subsequently affirmed in the district rarely. court, and the plaintiff in error sought to re- “But defendants were not bound to provide verse the judgments of both courts.

against a storm of wind so extraordinary in A bill of exceptions, embodying all the tes- power that no experience could have antici. timony, forms part of the record. From this pated its occurrence. And if the storm in it appears that the roof in question had stood question was of this character, the plaintiff can. eighteen years at the time of its fall, and there not recover." was a conflict of testimony as to whether it was This instruction of the court, it is now constructed on a proper plan and properly claimed, was erroneous. There are also varifastened for the purpose of resisting storms – ous other grounds of error alleged, but it is not some eight or ten experts testifying in the affir- necessary to state them as they were not passed mative and some four or five in the negative. upon by the court. There was also a conflict of testimony as to the WELCH, C. J. .... If the defendants, in severity of the storm, as compared with other the construction and maintenance of the build. storms which had previously occurred in the ing, used that degree of care which men of orlocality.

dinary prudence are accustomed to employ in At the close of the testimony the defendants like business, they were not liable. Had the requested the court to instruct the jury that if court stopped with this proposition there clearly the roof of the station-house, at the time of would have been no error in the charge. But the accident, was of sufficient construction and the court went further, and told the jury that

Vol. IV.]

COMMONWEALTH v. WHITMAN.

[No. 10

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

(To appear in 121 Mass.)

CRIMINAL LAW.—LARCENY. — CORPORATION. — EVIDENCE.- PRACTICE.

COMMONWEALTH v. WHITMAN.

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 twen

ty-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 calculated to mislead the jury. Two rules, all storms which could reasonably have been apparently in conflict with each other, were anticipated, and by plain implication told them laid down for their guidance, and it is imposthat the defendants were bound to provide sible to know which they followed. The general against all storms that were not "unprece- custom of prudent persons in such cases, and dented," or that were of a kind that had ever not the absolute requirements of the occasion, is happened within the range of human “expe- the true standard by which the defendants rience." Taken by itself, this latter part of should be tried. They were only bound to the charge is clearly erroneous, and in conflict come up to the fair average of careful and pruwith the rule at first, and, as we think, cor- dent men. rectly laid down by the court. The whole Judgment reversed, and cause remanded. charge, taken together, to say the least, was

Vol. IV.]

COMMONWEALTH v. WHITMAN.

(No. 10.

from the office of the secretary of state of New York, where the law required the original to be deposited. It appeared that the company had undertaken to do business in the city of Boston under its New York organization, by delivering messages, and that this boy was one of its messengers. The judge instructed the jury " that the court was not bound to say whether the company had or had not authority to do business under its New York charter in the city of Boston; but that if the jury found that it was incorporated under the law of New York as the District Telegraph Company, and attempted to do business here under its organization, and received this money and undertook to deliver it through this boy, as its agent, then it might be considered as having special ownership in this property, which would be sufficient under this indict. ment." Held, that the evidence was rightly admitted, and that the defendant had no ground of exception to this instruction.

INDICTMENT in two counts for larceny: the first charging the ownership of the property as being in “ the District Telegraph Company, a corporation duly established by law;" and the second, as being in George G. Drew. Trial in the superior court, before Putnam, J., who allowed a bill of exceptions in substance as follows :

At the close of the whole evidence, and before the arguments to the jury, the attorney for the commonwealth elected to go to the jury upon the first count.

The evidence for the government tended to show that George G. Drew, a constable of the city of Boston, had an office in Joy's Building, on the second floor of the building, at the head of the first flight of stairs in the rear; that he had an execution against one Lowe, for collection, amounting to $40.65; that on April 19, 1876, the day named in the indictment, Lowe summoned a messenger boy, employed by the District Telegraph Company, to take the money to the office of Drew; that he put the money in an envelope directed to Drew, and gave it to the boy, together with a small package of cigars, the envelope being put under the string which was around the package; and that the boy started from the telegraph office, with the envelope and a receipt for the money handed him by the cashier, which he was to have signed, and proceeded to the office of Drew, in Joy's Building, He was then asked by the attorney for the government, “ Was there any one in the office ?” The witness answered, “Yes." He was then asked, Who was it?” The witness answered, “That man,” pointing to the defendant. To these questions and answers the defendant objected, but the judge adınitted them.

The witness then testified that he asked the man if he was G. G. Drew; that he said, “No;” that he asked him “ when he would be in ;” that he replied, “He would be in soon, right in ;” that he asked him “if he was going to stay till Drew came in,” to which he replied, “ Yes;” that he then laid down the envelope on the table, took out the receipt, and asked him “if he would sign it;” and that he signed it with a pencil, “G. G. Drew, by George Jones.” The receipt had all been filled in, ready for the signature, before it left the telegraph office. This evidence as to asking him to sign the receipt, and the signing of it, and the paper itself, was objected to by the defendant, but the judge admitted it. The witness was also asked, “ Did the signing of the receipt have anything to do with your leaving the package ?” This question was objected to, but the judge admitted it, and the boy answered, “ Yes. I should not have left the package, if I had not got the receipt.”

Vol. IV.]

COMMONWEALTH v. WHITMAN.

[No. 10.

c. The boy test the por exception' wolely by reas

The government contended that the boy had been induced to part with the package by reason of some trick or artifice, or some inducement held out by the defendant, to lead the boy to believe that he had the right to sign the receipt, and receive the package. Upon this part of the case, the defendant asked the judge to rule as follows: “ To constitute larceny by falsely personating or representing another, there must be an appreciative act of personation or representation. If the man who was in Drew's office when the boy left the package (whoever he was) made no representation that he was Drew, but distinctly told him that he was not Drew, then there was no larceny.” The judge gave this ruling, with this addition, 6 unless the man held out some inducement to the boy to lead him to believe that he had the right to sign the receipt and receive the package for Drew.” The judge further, in charging the jury on this part of the case, said that the jury must find that these inducements were held out for the purpose of obtaining the package, the party offering them having the guilty purpose at the time to convert the property to his own use, and afterwards did so convert it, and also that the boy was led to part with the possession of the property solely by reason of said inducements; to which instruction no exception was taken.

The boy testified that when he left the office of the District Telegraph Company he took with him a written receipt, filled up except the signature. The date, twenty two minutes past two, on the receipt, was the hour at which he left the telegraph office, as marked by the cashier. One Howard testified that he had an office in Joy's Building, No. 12; that on April 19, about quarter to two o'clock, he left his office to go to Pemberton Square. He was asked, “ When you went out of your office, did you see Whitman?” This question was objected to by the defendant, on the ground that the time fixed by the telegraph company as the time when the boy left the office with the money was twenty-two minutes past two. The judge admitted the testimony. The witness stated that as he passed the door of Drew's office, at about thirteen minutes to two o'clock, he saw the defendant in Drew's office alone, the door being opened as he passed. As he went along Court Street to Pemberton Square he saw the time by the Advertiser's clock, and it was then ten or eleven minutes to two o'clock. On this point in the case, the defendant asked the judge to rule as follows : “ The whole of the receipt must be taken as true, so far as the government case is concerned. The time named therein must be assumed by the jury as correct, and the government must be held to concede that the transaction at Drew's office, whoever was the man there, was subsequent to that time, twenty-two minutes past two." The judge declined to give this ruling.

The government offered in evidence a receipt for a watch, written in ink, signed by the defendant, which he admitted to be his handwriting. The government then proposed to exhibit it to the jury for the purpose of comparison of hands, contending that the same person who wrote the paper writing also wrote the signature to the receipt which was handed to the boy. To the admission of this paper, for the purpose of comparison of hands, the defendant objected, but the judge admitted it, under exception. On this part of the case the defendant asked the judge to instruct the jury as follows : “ The only legitimate use of the watch receipt,

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