Lindholm v. Northwestern Pacific Railroad

An appeal by plaintiff from a judgment of nonsuit in an action to recover damages for personal injuries sustained by plaintiff as a result of the alleged negligent acts of defendant’s employees.

The correctness of the trial court’s ruling on the motion for nonsuit depends mainly upon the determination of the

The following are the facts: During the lunch hour on the day of the accident, appellant, a hoisting engineer employed by the King Coal Company, whose premises adjoin those of the Moore Shipbuilding Company in Oakland, entered the yards of said shipbuilding company for the purpose of visiting a relative aboard a vessel which he supposed was docked in said yards. The entire shipbuilding yards are inclosed by a fence, the only entrance thereto from the land side being through a gate at which a watchman is stationed, but plaintiff was allowed to enter said yards unchallenged on account of having been in there frequently on business connected with his employment by the coal company. After passing through the main gate appellant walked along a railroad track, down, the center of one of the docks toward a boat which he supposed was the bark “Hecla” and on which he expected to find his kin, but after going some distance down the track he discovered he was mistaken as to the identity of the vessel. Thereupon he turned and proceeded toward a vessel, the “Paetolus,” which was moored in said yards, intending to ascertain from the crew of that vessel the probable date of arrival at the yards of the “Hecla.” The steamer “Cazadero,” owned by respondent Northwestern Pacific Railroad Company, was at this .time in the drydock of said plant being repaired by the Moore Company, and much of its machinery had been lifted out of the hold, dismantled and strewn over the dock for the purpose of allowing respondent’s employees to repair the same. In order to reach a ladder hanging over the side of the “Paetolus” appellant turned at the point where he realized he was mistaken regarding -the identity of the vessel-.supposed to be 'the “Hecla” and proceeded directly across the dock through the dismantled parts of the “ Cazadero’s” machinery toward a stringer on the edge of the dock about twenty-five or thirty feet distant from the “Paetolus’ ” ladder, along which stringer he meant to walk until he reached the ladder. In selecting this route it was necessary for him to follow a narrow space through the “ Cazadero’s”

[1] The determination of the question of whether the status of a person entering the premises of another is that of a bare licensee, or a licensee by invitation, turns on the nature of the business which brings the licensee upon the premises, and it is held generally in this respect that where one enters the premises of another without express or implied invitation, and the object of his visit is solely for his own benefit, pleasure, convenience, or curiosity, having no relation to the business of the owner, he is at best a mere licensee, the license being enjoyed by him with its concomitant perils, and with the assumption of all risks attached to the condition of the premises or which are incident to the operation of the business conducted thereon, the owner owing him no duty except to refrain from doing him wilful or wanton injury. (Means v. Southern Cal. Ry. Co., 144 Cal. 473 [1 Ann. Cas. 206, 77 Pac. 1001 ], citing authorities from other jurisdictions; Grundel v. Union Iron Works, 141 Cal. 564 [ 75 Pac. 184 ]; Kennedy v. Chase, 119 Cal. 637 [ 63 Am. St. Rep. 153 , 52 Pac. 33 ]; Giannini v. Campodonico, 176 Cal. 548 [ 169 Pac. 80 ]; Schmidt v. Bauer, 80 Cal. 565 [ 5 L. R. A. 580 , 22 Pac. 256 ]; Cleveland C. C. &

[2] The evidence here shows without conflict that appellant, having entered said yards with the sole object of calling upon a relative, was upon the premises of his own volition concerning a matter personal to himself and was not there to promote the interests of the owner. Therefore, under the rule above mentioned, his status was at best, as the trial court concluded, that of a mere licensee. (20 R. C. L., p. 69; Nelson v. Burnham & Morrill Co., 114 Me. 213 [ 95 Atl. 1029 ]; Dixon v. Swift, 98 Me. 207 [ 56 Atl. 761 ]; Norris v. Hugh Nawn Co., 206 Mass. 58 [19 Ann. Cas. 424, 31 L. R. A. (N. S.) 623 , 91 N. E. 886 ]; Woolwine’s Admr. v. Chesapeake & O. R. Co., 36 W. Va. 329 [ 32 Am. St. Rep. 859 , 16 L. R. A. 271 , 15 S. E. 81 ]; Galveston Oil Co. v. Morton, 70 Tex. 400 [ 8 Am. St. Rep. 611 , 78 S. W. 756 ].) As such licensee respondent owed appellant no duty to keep the premises in a safe condition; and, in the absence of such duty, no negligence can be imputed to respondent. (Grundel v. Union Iron Works, supra.)

[3] But aside from the question of whether appellant’s purpose in entering said premises to call upon a relative constituted him an invitee or a bare licensee at the time he entered said yards, the uncontroverted fact as established by appellant’s testimony proves that when injured he was not in pursuit of such purpose, but was then on a mission purely of his own, namely, to ascertain from the crew of another vessel the probable date of arrival of the “Hecla.” The evidence is without conflict that soon after he passed through the gate of said yards and while he was in the middle of said dock he discovered that the purpose for which he entered said premises was futile; that notwithstanding such discovery he diverted his course and attempted to cross the dock by finding his way through the “ Cazadero’s” dismantled machinery, intending to ascertain from the crew of the “Paetolus” the probable date of arrival of the “Hecla”; and that while in pursuit of such mission he was injured. He admits that after discovering his mistake as to the identity of the vessel he could have

[4] Appellant further contends that, although his status may have been that of a mere licensee, respondent was nevertheless charged with the duty of exercising ordinary care to protect him from injury resulting from overt acts of negligence as distinguished from passive negligence such as arises from an unsafe condition of the premises, citing in support thereof, among others, the cases of Lucas v. Walker, 22 Cal. App. 296 [ 134 Pac. 374 , 379], and Herold v. P. H. Mathews Paint House, 39 Cal. App. 489 [ 179 Pac. 414 ], The facts of the cases just cited show, however, that the application of the rule contended for by appellant is grounded upon evidence showing that the licensor was or had good reason to be aware of the presence of the licensee in the place of danger. Under such circumstances it may be conceded that the owner is charged with the duty of exercising reasonable care to avoid injury to the licensee by any active or overt act of negligence. (20 R. C. L., pp. 59, 60.) In the instant case, there was no evidence whatever to show that respondent’s employees at any time were or had reason to be aware of appellant’s presence. The cases relied upon by appellant are, therefore, not in point.

[5] We find no merit in appellant’s contention that respondent, not being the owner of said premises, may not invoke the rule available to an owner against bare licensees. The evidence shows that respondent was the lawful occupant and in the legal possession of that portion of the premises where the accident occurred. It was therefore using the same by right as against appellant’s use thereof by sufferance, and, consequently, so far as the question of negligence is concerned, was clothed with the rights of the owner and must be treated as such. (McLaughlin v. Bardsden, 50 Mont.

For the foregoing reasons we are of the opinion that the nonsuit was properly granted. The judgment is therefore affirmed.

Tyler, P. J., and Cashin, J., concurred.