Atkinson v. Corriher Mills Co.

BeogdeN, J. Is an employer liable for tbe injury of an employee sustained upon tbe premises of a third party while returning home from work, and using a frequented path across tbe property of such third party? Tbe defendant owned tbe land over which tbe Southern Railway bad an easement of 200 feet in width. Tbe right of way, at tbe time of tbe injury, was used exclusively for railroad purposes and tbe spur track entering tbe enclosure of tbe mill was installed by tbe railway company and subject to its exclusive control. Tbe plaintiff used this spur track in returning to her home after working hours and in attempting to follow a path down the embankment of tbe spur track, tbe soft earth gave way and she was thrown and injured. Tbe duty of an employer to exercise ordinary care in providing proper approaches to tbe place of work and proper facilities for ingress and egress has been frequently considered by tbe various courts of tbe country. This Court has recognized and defined tbe duty in several cases, notably: Elliott v. Furnace Co., 179 N. C., 142, and Bennett v. Powers, 192 N. C., 599. Tbe Elliott case stated tbe proposition in these words: “It is tbe fully established principle with us that an employer of labor, in tbe exercise of reasonable care, is required to provide for bis employee a safe place in which to do bis work, and our decisions bold that tbe obligation extends to tbe approaches to it when they are under tbe employer’s control and in tbe reasonable scope of this duty.” Tbe Bennett case states tbe proposition in tbe following language: “Tbe rule that it is tbe employer’s duty to use ordinary care to furnish bis employee with a reasonably safe place for bis work, is not restricted to tbe identical situs of tbe labor, but extends to tbe exercise of ordinary care to see that tbe means of egress and ingress provided by tbe employer or customarily used by tbe employee in going to and from bis work on tbe premises of tbe master, and that tbe ways so provided or so used in passing from one part of tbe premises to another, in tbe course of bis employment, are reasonably safe.” See, also, Kelly v. Power Co., 160 N. C., 283. Tbe foregoing cases, however, involve injuries sustained by employees upon tbe premises used and controlled by tbe employer, and hence do not present tbe exact question of law involved in this appeal. Tbe *8 general aspect of the rule of law pertinent to the facts in the case at bar was discussed and applied by Connor, J., in Crawford v. Michael-Bivens, Inc., 199 N. C., 224. The opinion says: “The general rule of the law imposing upon the defendant this duty was not applicable, however, in the instant case, while plaintiff was at work, temporarily, on the premises of the New Way Laundry, for the reason that the place at which plaintiff was required to work was not under the control of said defendant.” That is to say, that ordinarily the ownership, use, and control of the premises is the usual test of liability. This conclusion is supported by the decisions of many courts of final jurisdiction, to wit: Connecticut, Tennessee, Alabama, Kentucky, Massachusetts, Minnesota, Michigan, Pennsylvania, West Virginia; Channon v. Sanford Co., 40 Atlantic, 462; Cash v. Casey-Hedges Co., 201 S. W., 347; Seminole Graphite Co. v. Thomas, 87 Southern, 366; Gillespie’s, Exrs., v. Howard, 294 S. W., 154; Hughes v. Malden & Melrose Gaslight Co., 47 N. E., 125; Lingren v. Williams Bros. Boiler Co., 127 N. W., 626; Penner v. Vinton, 104 N. W., 385; Israel v. Lit Bros., 94 Atlantic, 136; Wilson v. Valley Improvement Co., 73 S. E., 64. The general principle was tersely expressed in the headnote of an opinion written by Justice Holmes in the Hughes case, supra, “where the servant was injured by the caving in of a trench neither dug nor controlled by the master, evidence that the servant made no examination, but relied on the master for his safety is immaterial.” Some of the courts have recognized and applied exceptions to the rule, where abnormal conditions prevail or where the menace of the premises of the third party was so open and obvious as to impute notice of impending danger to the employer. This line of exceptions was discussed by the Supreme Court of Tennessee in the case of Cash v. Casey-Hedges Co., supra. Moreover, in the case at bar, no duty of inspecting the path where plaintiff was injured, was imposed upon the” defendant by virtue of the fact that the defendant had no use or control over the spur track, the embankment thereto, or the main line track of the railway company. As long as the railway company had the right to use the land for railway purposes and was then in the present use and occupancy of such land for such purpose, the defendant was thereby deprived of control over the premises. Upon the whole record, therefore, the Court is of the opinion that the motion for nonsuit should have been allowed. Reversed.