Francis H. (Francis Hermann) Bohlen.

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of not doing anything by himself or his servants from which injury
may arise, and if by any act of negligence on the part of hinTselT'or
his servants injury does arise, he is liable to an action.' That is the
whole question. The pit. is passing along the passage oy permission
of the deft., and though he could only enjoy that permission unTler
certain contingencies, yet when injury arises not from any of those
contingencies, but from the superadded negligence of tlie deft., the
deft, is liable for that negligence as much as if it had been upon a
public highway.

Wig HTM AN, J. — The rule in this case was obtained on a very
narrow ground. The declaration having alleged that the pit. and
others were permitted to pass, repass and use the way in question,
and that the pit. was there with the permission of the proprietors
of the passage lawfully passing along the passage, the deft, took
issue on the fact whether such right to pass along the passage was
permitted by the deft. I think that there was evidence to show that
the pit. had the permission of the deft, to use the way, and that he
was lawfully there at the time of the accident. I entirely agree with
my Lord Chief Justice that the pit. is also entitled to succeed on the
larger ground. It appears to me that such a permission as is here
alleged may be subject to the qualification that the person giving it
shall not be liable for injuries to persons using the way arising from



]5.\KRV f. X. V. CENTRAL ^: IllDSON RIVI:R R. R. CO. 4I9

the ordinary state of things, or of the ordinary nature of the business
carried on ; ^ but that is distinguishable from the case of injuries
wholly arising from the negligence of that person's servants.

Crompton and Blackblrx, JJ. delivered similar judgments.

Rule dischargcd.-




BARRY V. NEW YORK CENTRAL AND HUDSON RIVER

R. R. CO.

Co%irt of Appeals of Xezv York, 1883. 92 New York, 289.

Appeal from judgment of the General Term of the Supreme
Court, in the third judicial department, entered upon an order made
December i6, 1882, which affirmed a judgment in favor of plaintiff,
entered upon a verdict.

This action was brought to recover damages for alleged neg-
ligence causing the death of John J. Barry, plaintiff's intestate, who
was run over and killed in attempting to cross defendant's tracks in
the city of Troy.

The material facts are stated in the opinion.

Axdri:ws, J. If the absolute legal right of the intestate to be
upon the track of the defendant at the place of the injury was a ma-
terial question in the case, it may have been error in the court to have
submitted to the jury to find whether such right existed under the
deed from Cushman Norton to Pain and Buell. But we are of
opinion that the question was (|uite immaterial to the determination
of the controversy. It is undisputed that the owners of lots abutting
on the railroad at this point had a right of way across the defend-
ant's tracks, and that for more than thirty years the public were in
the habit of crossing the tracks at this point to reach Madison and
other streets lying northerly and easterly of the railroad, the proof
being that several hundred people crossed' there every day. There
can be no doubt that the acquiescence of the defendant for so long a
time, in the crossing of the tracks by pedestrians, amounted to a
license and permission, by the defendant, to all persons to cross the
tracks at this point. These circumstances imposed a duty upon the
defendant in respect of persons using the crossing, to exercise rea-
sonable care in the movement of its trains. The companv had a law«-
ful right to use the tracks for its business, and could have with-
drawn its permission to the public to use its premises as a public
way, assuming that no public right therein existed ; but so long as

^Accord: Rosenthal v. Beef Co.. loi X. Y. Supp. 532 (1906), a licensee
in passagewa}', over which sides of beef were, in the course of the owner's
business, carried at frequent intervals by a trolley, struck by a side of beef.

'Accord: De Haven v. Henncssy. etc.. Co., 137 Fed. 472 (C. C. A., 6th
Circ, 1905), visitor going by invitation of assistant superintendent of de-
fendant to inspect the tower of a building under construction by the latter
injured by the negligence of tlie elevator operator; Corrigan v. Union Sugar
Refinery , 98 Mass. 577 (1868), one struck by a keg carelessly thrown from
a window may recover though on the premises by bare permission, revocable
at the owner's pleasure ; De Boer v. Brooklyn Wharf Co., 51 N. Y. App.
Div. 289 (1900), plaintiff crossing defendant's premises by 'a path, which
for years the public had used, run down by an engine on its private railway.



<?■



420 BARRY Z'. N. Y. CENTRAL & HUDSON RIVER R. R. CO.

Jt permitted the pub lic^us£3LJVgM^iajgeable_\vitlt44flowled of the
T]-inCTpr fQ ]-)ii piatT|TTpTrnm operating its trains at that point, and was
bound to such reasonable precaution in their management as ordinary
pr-«xknc£_dktatedj;o protect wayfarers from injury. It is doubtless
true that the owner of the premises owes no duty to keep them in
such condition that an intruder, or a person casually thereon by
suflFerance, shall not be injured. The quarry case {Hozvnsell v.
Siinih, 97 Eng. Com. Law, 731) is an apt illustration. There the
plaintiff in crossing the defendant's waste land, which the public had
been allowed to cross, fell into an unguarded excavation, and the
court held that the plaintiff had no cause of action, because the de-
fendant was under no legal duty to fence or otherwise guard the
excavation for his protection. The plaintiff there availed himself of
the license to use the premises in their existing condition, and ac-
cepted it with its attendant perils. The defendant did no afffrmative
act at the time by which existing conditions were changed and new
perils created.

In the case of the movement of a train of cars over a track at a
place which the public are permitted to use as a crossing the company
are necessarily apprised that it is attended with danger to life. The
company is an actor at the time in creating the circumstances which
imperil human life, and it would be alarming doctrine that it was
under no duty to exercise any care in the movement of its trains^
The cases of Nicholson v. Erie R\. Co. (41 N. Y. 525), afld'oT'^W^"
ton v. iV. Y. C. & H. R. R. R. Co. (66 id. 243), do not sustain the
defendant's contention. In neither of these cases was the movement
of the cars the direct act of the party sought to be charged, but re-
sulted from causes which could not reasonably or naturally have
been anticipated. There was in fact no negligence shown on the
part of the defendants. The court in these cases properly held that
the circumstances did not create any duty toward the party injured,
or tend to establish any culpable negligence.

The ground of liabilit3:Jn_this_caJeJs_n£gUg£iic^e and thedul^t-oi — —
the defendant to exercise reaosonabTecare, existed irrespective-€rf — "
the fact whether the plaintiff's intestate had a fixed legal dg kt "^
to cross the tracks, or was there simply by the defendant's
implied permission. The construction of the deed was not
material in determining the question of reasonable care. The cir-
cumstances known to the defendant required this, whether the plain-
tiff's intestate was fherp bv ria l it n r bv a mer^ licens e. The judge,
upon the d e f endanl^Trequest, charged that if the intestate was on the
track by mere license of the defendant, and having no other
right, the plaintiff could not recover. The learned judge in making
this charge followed what he understood to be the ruling of the Gen-
ersl Term on the first appeal, and the charge was, we think, for the
reasons stated erroneous. But the error was in favor of the defend-
prt, and the jury having found that the defendant was guilty of neg-
ligence in the management of the train which caused the intestate's
death, this finding, if justified (in the absence of contributory neg-
ligence), sustains the action.

It is claimed that there was no evidence to justify the submission
to the jury of the question of the defendant's negligence. The court



BARRY V. N. Y. CENTRAL & HUDSON RIVER R. R. CO. 42 1

could not, we think, have properly taken this question from the jury.
The train consisted of an engine and two passenger cars. It was, as
the evidence on the part of the plantiff tends to show, backing up
without a bell being rung, or other signal being gi ven, in ch orKf.' of -w
brakeman who \vasTrrT tie tlmg o n the pla t torm befTveen the two car s^
and where he could not see persons on tne track, o r have notice so~as ^
to apply the brakcJiLiase oT danger. Movin<^ a train in this way in
a populous locality where "persons were at all times crossing the
track, might very well be found by a jury to be culpable negligence.



We find no error of law in the record and the judgment should
therefore be affirmed.

All concur, except Ruger, Ch. J., dissenting.
Judgment affirmed.^



^Accord: Phila. & Reading R. R. v. Troutman, 11 W. X. C. 453 (Pa.,
1882); Taylor v. R. R., 113 Pa. 162 (1886); Pomponio v. R. R., 66 Conn.
528 (1895); West. & Afl. R. R. V. Meigs, 74 Ga. 857 (1885); Mitchell v.
R. R., 68 N. H. 96 (1894); Green v. R. R., no Mich. 648 (1896) ; Delancy
V. R. R., 33 Wise. 67 (1873); Smalley v. R. R., 98 Pac. 311 (Utah, 1908);
Felton V. Aubrey, 74 Fed. 350 (1896). This applies only where the public
or adjacent owners are accustomed without dissent to cross at some defi-
nite point not where the intrusion is of "that general kind that may occur
(anywhere) on the tracks of a railroad located in a city or town," Shea y.
R. R., 69 N. H. 361 (1898), p. 363; while the language of Agnew, C. J., in
Pa. R. R. V. Lezcis, 79 Pa. 33 (1875), may appear to sanction a wider liabil-
ity, the plaintiff was in fact crossing on a well defined customary passage-
way; see as to duty of a railroad running upon an unfenced right of way
upon a public street, Bait. & Pot. R. R. v. Cumberland. 176 U. S. 232 (1900').
and see Smedis v. R. R.. 88 N. Y.. 13 (1882). In Lake Shore & So. R. R.
V. Bodcmcr, 139 111. 596 (1892) and Lafayette, etc., R. R. v. Adams, 26
Ind. 76 (1866) it is held that to run trains at a high speed and without
signals through public streets, or what has the appearance thereof, is wilful,
wanton misconduct for which even a trespasser if injured may recover.

So where the public are in the habit of using a path on the railroad's
right of way by the side of or between the tracks, the railroad is bound to
anticipate their probable presence and so operate its trains as not to injure
them, BrozvH v. R. R., 73 N. H. 568 (1906); Davis v. R. R., 58 Wis. 646
(1883) ; but the fact that the public or adjacent owners are in the habit of
walking along the tracks imposes no such duty on the railroad, Kaseman v.
Sunbiiry, 197 Pa. 162 (1900), p. 168, semble; Wabash R. R. v. Jones, 163 111.
167 (1896) ; save where the tracks run unfenced through a public street, R. R.
V. Bodemcr, and R. R. v. Adams, supra. It is not necessary that the crossing
be one habitually used by the public, it is enough if the defendant has reason
to expect the plaintiff's presence at some definite point on its track. Fetch v.
R. R., 66 N. H. 318 (1890), plaintiff using track in hauling and loading wood
under contract with defendants, but see contra., .Railroad v. Norton, 24 Pa.

465 (1855). . , , .

A railroad is liable to a licensee by mere tacit acquiescence only for mis-
feasance, not for nonfeasance. Nicholson v. R. R.. 41 N. Y. 525 (1870),
cars improperly braked, started by high wind, ran down plaintiff at a per-
missive crossing; Sutton v. R. R., 66 N. Y. 243 (1876), somewhat similar
facts, cf. Vandcrbeck v. Hendry, 34 N. J._ L. 467 (1871), lumber carelessly
piled near path through yard. As to what is misfeasance, see Davis v. R. R.,
58 Wis. 646 (1883), leaving a boiler unattended, so that it exploded, held to
be active misconduct of the business, the risk of which the hicensee does
not assume, aliter, if the explosion had been due to a defect in the boiler
discoverable by inspection, (semble). See also, Lowery v. Walker, L. R.
1911 A. C. 10, where an owner, who had permitted (or rather tolerated
rather than go to the trouble of preventing) the public to cross his field,
was h.cld liable to a person so crossing it who was injured by a savage
stallio 1 which he had nlaced therein without giving notice of its prei-ence
and vhiirac'er.



422 SWEENY v. OLD COLONY R. R. CO.

2. At the Occupier's Invitation — Express or Implied.



SWEENY z'. OLD COLONY AND NEWPORT RAILROAD

COMPANY.

Supreme Judicial Court of Massachusetts, 1865. 92 Mass. 368.

Tort to recover damages for a personal injury sustained by
being run over by the defendants' cars, while the plaintiff was cross-
ing their railroad by license, on a private way leading from South
Street to Federal Street, in Boston,^

BiGELow, C. J. This case has been presented with great care
on the part of the learned counsel for the defendants, who have
produced before us all the leading authorities bearing on the ques-
tion of law which was reserved at the trial. We have not found
it easy to decide on which side of the line, which marks the limit of
the defendants' liability for damages caused by the acts of their
agents, the case at bar falls. But on careful consderation we have
been brought to the conclusion that the rulings at the trial were
right, and that we cannot set aside the verdict for the plaintiff on the
ground that it was based on erroneous instructions in matter of law.

In order to maintain an action for an injury to person or prop-
erty by reason of negligence or want of due care, there must be
shown \a rxirt "rmr nblig^tioiLilL'^^i^j' towards the plaintiff, which
th e, defendant has left undisch ajged or unfulfilled. This is the basis
on which the cause of action rests. There can be no fault, or_neg-
ligence, or breach of duty, where there is no act, or service, orcofr*-
tract, which a party is bound to perform or fulfil. All the cases in
the books, in which a party is sought to be charged on the ground
that he has caused a way or other place to be incumbered or suffered
it to be in a dangerous condition, whereby accident and injury have
been occasioned to another, turn on the principle that negligence con-
sists in doing or omitting to do an act by which a legal duty or obli-
gation has been violated. Thus a trespasser who comes on the land
of another without right cannot maintain an action, if he runs
against a barrier or falls into an excavation there situated. The
owner of the land is not bound to protect or provide safeguards
for wrongdoers. So a licensee, who enters on premises by per-
mission 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
there at his own risk, and enjoys the license subject to its concom-
itant perils. No duty is imposed by law on the owner or occupant
to keep his premises in a suitable condition for those who come
there solely for their own convenience or pleasure, and who are
not either expressly invited to enter or induced to come upon them
by the purpose for which the premises are appropriated and occu-
pied, or by some preparation or adaptation of the place for use by
customers or passengers, which might naturally and reasonably lead
them to suppose that they might properly and safely enter thereon.



*The reporter's statement of the facts is omitted.



SWEENY V. OLD COLONY R. R. CO. 423

On tb.e other hand, tliere arc cases where houses or land are
SO situated, or their mode of occupation and use is such, that the
owner or occupant is not ahsolved from all care for the safety of
those who come on the premises, bu t whe re the law impo ses on
him an obligation or duty to provide Tordieir security against
accident and injury. Thus the keeper of a shop or store is bound
to provide means of safe ingress and egress to and from his prem-
ises for those having occasion to enter thereon, and is liable in
damages for any injury which may happen by reason of any neg-
ligence in the mode of constructing or managing the place of entrance
and exit. So the keeper of an inn or other place of public resort
would be liable to an action in favor of a person who suffered an
injury in consequence of an obstruction or defect in the way or pas-
sage which was held out and used as the common and proper place
of access to the premises. The general rule or principle applicable v
to this class of cases is, that an owner or occupant is bound to keep
his premises in a safe and suitable condition for those who come
upon and pass oye r the ni^ using due care, if he has held out any
invitation, allurement or inducement, either express or implied, by^
which they hav e been led to enter there on. A mere naked license
or permission to enter or pass over an estate will not create a duty
or impose an obligation on the part of the owner or person in pos-
session to provide against the danger of accident. The gist of the'
liability consists in the fact that the person injured did not act
merely for his own convenience and pleasure, and from motives
to which no act or sign of the owner or occupant contributed, but
that he entered the premises because he was led to believe that they
were intended to be used by visitors or passengers, and that such
use was not only acquiesced in by the owner or person in possession i
and control of the premises, but that it was in accordance with the I
intention and design with which the way or place was adapted and
prepared or allowed to be so used. The true distinction is this : A
mere pa^ive acqiuesccnceb}' an owner or oc cupier in a certain use
of his land by others Inyo Ivcs no liability ; but it iie directly or By
implication induces persons to enter on and pass over his premises,
he thereby assumes an oljligation that they are in a safe condition,
suitable for such use, and for a breach of th is obligation he is liable
in damages to-ar-person injured thereby.^' ~

* Accord: Atlanta Mills v. Coffey, 80 Ga. 145 (1887), plaintiff invited into
defendant's mill to haul away seed given to him; Central R. R. v. Robertson,
95 Ga. 430 (1894), railroad building bridge, not part of highway, over its
line for convenience of adjacent "settlement" liable for injuries due to its
defective condition: Mandcrville Mills v. Dale. 2 Ga. App. 607 (1907), plain- "•
tiff coming into mill on express invitation of owner's agent to do private
business with an employe. Howe v. Ohmart, 7 Ind. App. 32 (1893), visitor
invited to attend lectures at a college ; Gorr v. Mittlestaedt, 96 Wis. 296
(1897), guest at funeral, defect near private driveway, semble: Richmond,
etc., R. R. V. Moore, 94 Va. 493 (1897), visitor at free trolley park, imma-
terial whether he came as passenger on defendant's line or not. See also
I'anderbeck v. Hendry. 34 N. J. L. 467 (1871) ; Phillips v. Library Co., 55
N. J. L. 307 (1893) ; Furey v. R. R., 67 N. J. L. 270 (1901). and Beehler v.
Daniels & Co., 18 R. I. 563 (1894"), accord, (semble). So. while it was
held in Cannon v. R. R., 157 Ind. 682 (1902"), that a railroad
company owed no duty to persons merely permitted to cross their



424 SWEENY V. OLD COLONY R. R. CO.

This distinction is fully recognized in the most recent and best
considered cases in the English courts, and may be deemed to be
the pivot on which all cases like the one at bar are made to turn.
In Corhy v. Hill, 4 C. B. (N. S.) 556, the owner of land, having a
private road for the use of persons coming to his house, gave per-
mission to a builder engaged in erecting a house on the land to
place materials on the road ; the plaintiff, having occasion to use the
road for the purpose of going to the owner's residence, ran against
the materials and sustained damage, for which the owner was held
liable. Cockburn, C. J. says: "The proprietors of the soil held out
an allurement whereby the plaintiff was induced to come on the
place in question ; they held this road out to all persons having occa-

tracks at some particular point save not to wilfully or wantonly injure them,
if the crossing is planked {Slaughter v. R. R., 167 Ind. 330. 1906), or if a
gateway be made in a fence enclosing the tracks (Pittsburgh, etc., R. R. v.
Simons, 168 Ind. 333, 1906), this is held to be tantamount to an invitation to
cross and the company is liable even for a failure to keep the crossing in
good and safe condition and repair.

In Massachusetts it is the fact of an active invitation, and not the
object of the business, whether for some business purpose of the owner or
purely for the convenience of the guest, that creates the duty to take care
to prepare a safe place for the latter's reception, but see Knowlton, J., in
Plummer v. Dill, 156 IMass. 426 (1892). So where the plaintiff comes on to
the premises for a purpose for which the owner has manifestly prepared
them he is bound to see that they are reasonably safe, Davis v. Congrega-
tion, 129 Mass. 367 (1880), plaintiff going to religious meeting in church
loaned by defendant for the purpose; Learoyd v. Godfrey, 138 Mass. 315
(1885), policeman coming upon premises to effect arrest at request of ten-
ant; Gordon v. Cummings, 152 Mass. 513 (1890), postman collecting letters
from box in hall. The liability of an occupier to a purely social guest, though
mooted in Plummer v. Dill, supra, and Hart v. Cole, 156 Mass. 475 (1892),
is left undecided.

Where as is usually the case no express invitation is given, an invita-
tion will be implied where the conditions are such that a reasonable man
would suppose that the place had been prepared for his use, Chenery v. Rail-
road, 160 Mass. 211 (1893). It is necessary that the conditions show that
the place is prepared for the plaintiff's use. So if the condition be one
appropriate and necessary for the operation of the business carried on by
the owner there will be no implication of an invitation to others to utilize
it, Furey v. R. R., 67 N. J. L. 270 (1901), spaces left between cars on a pier
to facilitate unloading of freight constitute no invitation to pass through.
So the preparing and throwing open a premises to the public as a place of
business implies an invitation to those only who desire to come thereon for
the purposes of the business there carried on; no duty is thereby assumed
toward one coming on the premises for a purpose purely his own, Gilhs v.
R R 59 Pa. 129 (1868), boy coming to station platform to see the Presi-
dent pass by; Thiele v. McManus, 3 Ind. App. 132 (1891), plaintiff injured
by bad condition of a part of a store customarily used by customers, held
not entitled to recover unless herself a customer or at least "a shopper,'
i e one who goes to a shop to inspect its contents with a view to possible
purchase; Paris v. Hoberg, 134 Ind. 269 (1892), p. 279; Johnson y. R. R.,
T25 Mass. 75 (1878), planking put across the tracks at railroad station is an
invitation to passengers only to cross ; Vanderbeck v. Hendry. 34 N. J. L.
467 (1871), plaintiff using passageway in lumber yard not on business with
owner but as a short cut between streets ; Sterger v. Van Sicklen, 132 N. Y.
499 C1892), woman seeking her children in a house next her own injured by
fall of steps. And this is the more so where the plaintiff for his own pur-
poses goes into a part of the premises not usually frequented by customers
but reserved for the owner's private use, Paris v. Hoberg, supra; Gibson,
etc v Sziepienski, Z7 HI- App. 601 (1891). As to effect of express consent to



SWEENY V. OLD COLONY R. R. CO. 425

sion to proceed to the house as the means of access thereto." In Chap-
man V. Rothwcll, El. Bl. & El. i68, the proprietor of a brewery was
held liable in damages for injury and loss of life caused by permitting
a trap-door to be open without sufficient light or proper safeguards,
in a passage way through which access was had from the street
to his office. This decision was put on the ground that the defend-
ant, by holding out the passage way as the proper mode of approach
to his office and brewery, invited the party injured to go there, and
was bound to use due care in providing for his safety. This is the
point on which the decision turned, as stated by Keating, J., in Hoiin-
scll V. Smyth, 7 C. B, (N. S.) 738. In the last named case the dis-
tinction is clearly drawn between the liability of a person who holds