DANIEL F. O'BRIEN v. UNION FREIGHT RAILROAD COMPANY.

TORT by the manager of the New England Beef Company, engaged in the wholesale beef business, for personal injuries sustained before eight o'clock in the morning of November 15, 1906, by reason of being struck in the face by hot ashes thrown out from a dummy engine of the defendant in the defendant's freight yard on Atlantic Avenue in Boston, to which the plaintiff had gone to look for a carload of beef that was consigned to his employer. Writ dated November 19, 1906.

In the Superior Court the case was tried before Harris, J. The ruling of the judge and the evidence to which it related are described in substance in the opinion.

The defendant asked the judge to make the following rulings:

"1. Upon all the evidence the plaintiff is not entitled to recover. 2. There is no evidence of negligence on the part of the defendant company. 3. There is not sufficient evidence of negligence on the part of the servants or employees of the defendant company to warrant submitting the case to the jury. 4. There is no evidence of a breach of any duty owed the plaintiff on the part of the defendant, its servants or agents. 5. At the time of the accident the plaintiff was a trespasser, and the only duty owed him by the defendant was to refrain from wilfully or maliciously injuring him. 6. If the plaintiff was not a trespasser, his status at the time of the accident with relation to the duty owed him by the defendant was at the most that of a mere licensee, and the measure of the defendant's duty to the plaintiff was to refrain from doing him an intentional injury and from wantonly or recklessly exposing him to danger. 7. The defendant had the right to use its yard and carry on its business and conduct its operations incident to its business as it chose, so long as the defendant did no intentional injury to the plaintiff and refrained from wantonly or recklessly exposing him to danger."

The judge refused to make any of these rulings and made in a modified form another ruling which the defendant requested. The jury returned a verdict for the plaintiff in the sum of $500; and the defendant alleged exceptions.

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J. L. Hall, for the defendant.

F. P. Garland, for the plaintiff.

HAMMOND, J. The judge having ruled that if the plaintiff was a trespasser he could not recover, the case was submitted to the jury upon two possible views which they might take of the evidence, first that he was an invitee, or second that he was a licensee. It is strongly urged by the defendant that as matter of law the plaintiff was not an invitee. Upon this point the case is not very clear, but we are of opinion that upon the evidence the question whether he was an invitee was for the jury as well as were the questions whether he was in the exercise of due care and whether the act of the engineer in throwing the ashes upon him was inconsistent with any duty owed by the defendant to the plaintiff as such invitee.

But what if he was merely a licensee? There was some conflict in the evidence as to the location of the engine at the time of the accident. The evidence for the plaintiff tended to show on the one hand that the engine was then on track No. 3 adjoining the "traffic way," where it was not customary to discharge ashes and where people were permitted to go to look after their goods and to carry them away from the cars; while the evidence for the defendant on the other hand tended to show that the engine was standing on the "straight track" near the round house, where it was customary to clean out the engine preparatory to putting it in the house. The distance between the two locations was nearly one hundred feet. The judge ruled in substance that if the accident took place near the round house as contended by the defendant, then the plaintiff was a trespasser and could not recover; but if it happened "at the other place," and "under such circumstances that you can say it was something new, unusual and different, which was actively done, and done in a negligent way," and in the "traffic way ... to which this plaintiff had been permitted to come, had been so accustomed to come, that anybody throwing things out into that way without looking could be said to be careless in so doing," then the plaintiff, if using due care, was entitled to recover. We understand this to be a ruling that although the plaintiff was a mere licensee, yet if the act complained of was done in an unusual place and in failure to take ordinary care then the plaintiff could recover.

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Much of the law with reference to the duty owed to a mere licensee by the owner of land over which the licensee travels is well settled. So far as respects the condition of the land the licensee must take the land as he finds it. "Of course the land owner is liable if he does him intentional injury, or wantonly or recklessly exposes him to danger. It has sometimes been said that he is liable for a trap upon his land. We are not aware of any decision which distinctly defines the word 'trap' in this use. It would at least include any very dangerous construction or condition designedly arranged to do injury. But we are of opinion that an owner is under no liability for an unsafe condition of his premises caused by a mere failure to use ordinary care for the safety of persons who may chance to go there by permission while he is using the place for his own proper purposes and is not intending needlessly to expose others to danger. Otherwise there would be no important distinction between his duty to licensees and his duty to invited persons." Knowlton, J., in Moffatt v. Kenny, 174 Mass. 311, 315, 316. See also Zoebisch v. Tarbell, 10 Allen 385; Plummer v. Dill, 156 Mass. 426, and cases cited And the same principle has been applied in the case of machinery in action in the course of the licensor's business. Bolch v. Smith, 7 H. & N. 737, 742. Griffiths v. London & North Western Railway, 14 L. T. (N. S.) 797. Batchelor v. Fortescue, 11 Q. B. D. 474. Tolhausen v. Davies, 57 L. J. Q. B. 392, 395; S. C. 58 L. J. Q. B. 99. Larmore v. Crown Point Iron Co. 101 N. Y. 391. Weitzmann v. Barber Asphalt Co. 190 N. Y. 452.

In Batchelor v. Fortescue, while the deceased, a mere licensee, was standing upon a bank of earth watching the movements of a crane used in excavating, the crane swung over his head and by reason of the breaking of a chain a bucket attached to the chain fell upon him. It was held that, although the evidence would justify a finding of negligence on the part of the defendant, yet there was shown no duty on the part of the defendant to take due and reasonable care of the deceased, and a verdict was ordered by the trial court for the defendant. This verdict was affirmed by the Court of Appeals.

In Larmore v. Crown Point Iron Co., the defendant was operating a machine for raising ore from its mine. The machine

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consisted of an upright or mast in which a lever was inserted, and was worked by attaching horses to the lever by means whereof a bucket was raised and lowered. At the time of the accident the bucket was being lowered, and the lever, being insecurely fastened, was thrown out of its socket and flying rapidly around struck the plaintiff, a mere licensee. It was held in an able and lucid opinion that the defendant owed to the plaintiff no duty to use ordinary care to see that the lever was properly fastened, and a verdict which had been rendered in the trial court for the plaintiff was set aside

In Weitzmann v. Barber Asphalt Co., a boy, a licensee, was struck upon the head by a barrel which, suspended by a rope, was being drawn from one part of the premises to another. It was held that the defendant did not owe to the licensee the duty to take sufficient precaution to warn the plaintiff of the danger. As to trespassers and licensees the well settled rule is that the only duty of the owners or occupiers of the land is to abstain from inflicting intentional or wanton or wilful injuries. See also Downes v. Elmira Bridge Co. 179 N. Y. 136.

The great weight of authority seems to be that, as in the case of the land, so in the case of appliances thereon where danger is not concealed, the owner or occupier of the premises owes no duty to a mere licensee to take proper precautions to protect him, but is answerable only for injuries inflicted wantonly or wilfully. And this is so whether the licensee falls against the appliance or whether by reason of the lack of ordinary care of the owner to keep it in repair the appliance or some part of it strikes him.

But it is urged by the plaintiff that this principle is applicable only where the negligence is passive, and that where the danger is caused by an active act which is negligent the owner is answerable, or in other words that the owner or occupier owes to the licensee the duty to refrain from injuring him by an "actively negligent act." If the term "actively negligent act" means such an act as may be regarded as wantonly, recklessly or intentionally injurious to the licensee, the proposition is true; but if it means such as is short of that and arises simply from the failure to exercise ordinary care, then the proposition is not in accordance with the law of this State, so far at least as respects acts done

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in the transaction of lawful business upon the premises. Metcalfe v. Cunard Steamship Co. 147 Mass. 66. Heinlein v. Boston & Providence Railroad, 147 Mass. 136. Hanks v. Boston & Albany Railroad, 147 Mass. 495. Chenery v. Fitchburg Railroad, 160 Mass. 211. June v. Boston & Albany Railroad, 153 Mass. 79. Bowler v. Pacific Mills, 200 Mass. 364. Myers v. Boston & Maine Railroad, 209 Mass. 55.

In Metcalfe v. Cunard Steamship Co., the licensee, while walking upon the deck of a steamship, was struck and knocked into the hold by a bag of flour which swung across the deck on its way to be lowered through the hatch. Holmes, J., said: "The danger was perfectly manifest. . . . The defendant owed the plaintiff no duty to warn him against dangers of this sort."

In Hanks v. Boston & Albany Railroad, the plaintiff was run down by a train at a place where persons had been in the habit of crossing. The case turned in part upon the question whether the plaintiff was an invitee or licensee, this court saying that if a licensee he could not recover.

In Chenery v. Fitchburg Railroad, where the plaintiff was run down by a train at a private crossing, it was held that he could not recover if a trespasser or mere licensee. In the opinion is the following language: "As against a bare licensee, a railroad company has a right to run its trains in the usual way, without special precautions, if the circumstances do not of themselves give warning of his probable presence, and he is not seen until it is too late."

In June v. Boston & Albany Railroad, where the deceased, a mere licensee, was run down by a train, it was held that he could not recover. Holmes, J., in giving the opinion of the court speaks thus: "At most . . . [the plaintiff] . . . was no more than a licensee. As towards him, there was no negligence on the part of the defendant or its servants in not providing a sign-board, gate, or flagman, and there was no duty to whistle, although in fact the engine was whistling. The defendant had a right, as against him, to run its trains upon its tracks at such speed as it found convenient, and it was for the deceased to take care that he was not hurt by their doing so. There may be cases in which even unintended damage done to a licensee, by actively bringing force to bear upon his person, will stand

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differently from merely passively leaving land in a dangerous condition. But something more must be shown than that trains are run in the usual way upon a railroad, where the place does not of itself give warning of his probable presence, and when he is not seen until it is too late."

In Bowler v. Pacific Mills, where a licensee was run down by a freight train, Knowlton, C. J., giving the opinion of the court says: "The measure of the defendant's duty to the plaintiff was to refrain from doing him an intentional injury and from wantonly or recklessly exposing him to danger. It might use the street [a private street of the defendant over which by its permission, but not by its invitation, persons passed] and carry on its business and conduct its operations as it chose, so long as it did not trangress in this particular."

In the present case, even if it be assumed in favor of the plaintiff that the accident occurred while the engine was standing on track No. 3 near the "traffic way," it appears upon the plaintiff's own testimony that "it was standing there alone, no cars or other engines near it." It does not appear that there were near the engine any cars to be unloaded or loaded from the traffic way. It was early in the morning. There were no people near the engine. The plaintiff was not seen, nor could he be seen by the engineer standing inside the dummy engine, until the moment he was struck by the ashes. It cannot be said that as against a mere licensee the engine could not be cleaned anywhere else than at the ash heap, nor that cleaning it elsewhere was a thing so unusual as to impose upon the defendant the duty of additional or different care for his protection. The defendant at least in its own freight yard could throw its ashes where it pleased, so long as it refrained from doing the licensee an intentional injury and from wantonly or recklessly exposing him to danger.

It is a close question whether the act of the engineer in throwing the ashes was under the circumstances even lack of ordinary care, but, assuming as we do that the evidence would warrant a finding for the plaintiff on that issue, it certainly falls far short of the intentionally injurious or wanton and reckless act which the plaintiff must show if he was only a licensee. Upon the evidence the plaintiff as licensee had no case, and the

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jury should have been so instructed. The right of the defendant to such an instruction is fairly raised upon the record.

The decision in Corrigan v. Union Sugar Refinery, 98 Mass. 577, cited by the plaintiff, perhaps may stand upon the ground of intentional or reckless injurious acts.

Exceptions sustained.