Low v. Grand Trunk Railway Co.

Barrows, J. The counsel for defendants, while recognizing as sound law the general principle that "an owner is bound to keep his premises in a safe and suitable condition for those who come upon and pass over them, using due care, if he has held out any invitation express or implied, by which they have been led to enter therein,” stoutly contend that this custom house Officer, who on the night of the accident was upon the defendants’ — 317 — wharf, in the regular course of his duty to watch for smugglers and prevent smuggling from the steamer which was just hauling into the dock there from a foreign port, had no such invitation, but was a mere licensee. We cannot so regard him. His presence there was made necessary by the business to which the defendants had devoted their wharf, the reception of cargoes from foreign going vessels. Plaintiff contends (and we think rightly both upon fact and law) that "the true statement of their (defendants’) use and maintenance of the wharf is, that it was a wharf for the mooring of ships or vessels coming into port with cargoes from foreign lands, and subject to the regulations prescribed by law for such vessels. By putting their wharf to that use they assumed the responsibility of keeping it in a proper and suitable condition for the safe access of all persons whom that use required to come upon it. The business to which they devoted their property, under the laws of the United States called for the presence of the plaintiff (a night inspector at the custom house) there.” His business was with a vessel which had arrived from a foreign port within the jurisdiction of the United States, and was not fully unladen, and Ms duty was to attend to every kind of commodity which might be on board. His right to visit the premises while that vessel was there was not merely the right of visiting in reference to the business for which the premises could lawfully be used. One of the most important portions of his duty was to go there to prevent the use of the premises illegally. He might lawfully conduct his visits as to time and manner in the way best calculated to detect and prevent smuggling. If it were ever possible, it is too late now to attempt to limit the liability in such cases, as defendants’ counsel would have us, strictly "to persons coming there to transact the business to which the wharf was appropriated.” Numerous authorities go farther and charge the owner with a duty to those who come on his premises upon legitimate business connected by no means directly with that to which the structure is appropriated. Thus one who came only to vend his own wares to the officers of a vessel lying in a dock, was regarded as entitled to the pro — 318 — tection of an implied invitation from the Docks company, though it was urged that he was not on board on the ship’s business. Smith v. London & St. Catherine’s Docks Co. 3 L. R. C. P. 326. In Stratton v. Staples, 59 Maine, 95, the only errand which the plaintiff had at the drug store was to inquire for the defendant’s place of business, which she had passed in the darkness before coming to the insufficiently guarded roll-way into which she fell. She had no occasion to go to the drug store to "transact the business to which it was appropriated.” A railroad company owe a duty, in the matter of making the access to their station safe, to the hackman plying his vocation there to meet the trains as well as to the passengers from whom they derive a profit. Tobin v. P. S. & P. R. R. Co. 59 Maine, 183. So do the owners of a private wharf to one employed to carry the mail from a steamboat to whose proprietors the owners of the wharf had let a part of it; and this not on the ground of any contract between them and the plaintiff, but because of the duty which the law imposed upon them, to make and keep their wharf safe for all who were on it for a lawful business purpose, so long as they should permit it to be open and used. Wendell v. Baxter, 12 Gray, 494, citing: Collett v. London & N. W. Railway Co. 16 Ad. & El. 984, where the defendants were held liable for an injury, suffered by an agent of the post office, whom the post master general required them to carry; Erle, J. remarking, "The defendants have a public duty to perform in conveying the servants of the public safely.” So here. The company owe a duty to all public officers whose attendance there is made necessary by the business carried on at their wharf. It is too subtle a distinction to say, that though an invitation to the customs officer whose duty it was to look after the landing of the coal which the steamer was about to discharge, might perhaps be implied, it can not be to one whose presence was needful to prevent the frauds on the revenue, for which the arrival of any foreign going vessel, whatever her cargo, affords facilities. It avails nothing to say that the owners had not dedicated their wharf to smuggling and did not — 319 — invite tbe plaintiff to come there to prevent it. They had dedicated their wharf to the use of vessels bringing merchandise from foreign ports, and without watchfulness on the part of the customs officers it was sure to be misused. The owners of places used for public entertainments do not dedicate them to pickpockets or mobs, but they none the less owe a duty to the policeman who attends when there is a great crowd, to prevent violence and depredation. The instruction given by the presiding justice with respect to the circumstances which it was necessary for the jury to find in order to constitute an implied invitation to plaintiff, seems to have been carefully considered and affords the defendants no ground for complaint. It follows that the requested instruction was Tightly refused. Under the motion to set aside the verdict as against evidence, defendants’ counsel present with much force two points which always arise in cases of this description. 1. That defendants were guilty of no negligence in omitting to place a railing at the sides of the gangway into which the plaintiff fell, or a light to show where it was. 2. That plaintiffs’s injury was caused by his own negligéncc. We have given to the positions, taken in defence, the deliberate consideration which their importance merits. We remark in the first place, that both questions were for the jury and their conclusions are not to be sot aside unless it is found that they were manifestly wrong. 1. Was it a defect to leave this gangway, cutting the direct passage along the wharf transversely, and six or eight feet deep where the plaintiff fell, without a railing at its sides, or a light at night, when a newly arrived ship was lying there ? Everything which the defendants’ counsel have said in support of their position that there was no negligence in so doing, might be said with equal force, in respect to the roll way cutting transversely the platform in front of the defendant’s block of stores in Stratton v. Staples, 59 Maine, 94. Tbe question is, did a reasonable regard for the safety of those whom the use to which the defendants had devoted their wharf might be expected to bring there, require something in the way of safeguard at this gangway ? — 320 — In principle the case is the same as all others-, (and they are numerous) arising from injuries received in unguarded elevators and other arrangements and contrivances for business purposes in business places. In Indermaur v. Dames, 2 L. R. C. P. 311, though the unfenced shaft through which the plaintiff fell on defendant’s premises, was constructed in the manner usual in the defendant’s business, the defendant was not exonerated, as it appeared that the shaft could, when not in use, have been fenced without injury to the business. The case is an instructive one, as reported from the Exchequer Chamber, ubi supra, and also in the discussion upon the rule to set aside the verdict and grant a new trial in the Common Pleas, 1 L. R. C. P. 274. In fitting up a place for business purposes, one is at liberty to consult his own convenience and profit, but not without a reasonable regard for the safety of those whom his operations bring upon his premises, upon lawful business errands. In particular, everything which may operate as a trap or pitfall for those not familiar with the place or moving in a dim light, is to be avoided, if reasonable care will accomplish security to life and limb in that respect. Counsel ask in substance, why call upon the defendants to fence this gangway more than the sides of end of the wharf? It is a sufficient answer that a railing at the sides and end would, even if movable, be likely to be an unreasonably troublesome obstruction to the business for which the wharf was prepared, and it would certainly be from its extent unreasonably expensive to maintain. Not so in either respect at the gangway. Nor is there so great a liability to accident at the sides or end as there is in such a gangway, midway, where one’s eye catches a sense of security from seeing in an uncertain light the bulk of the wharf and of the vessel lying beside it extending before him. Considering how easy it would have been by means of a single piece of railing, fitted upon posts of proper height, movable like those at railroad crossings if desired, to guard against any such mischief as happened here, we think the jury did not err in saying that a reasonable regard for the safety of human beings required the defendants either to put it there or take some other — 321 — moans to warn a man, engaged as the plaintiff was, of danger at the gangway. II. The question as to contributory negligence on the part of the plaintiff was a more doubtful one. Defendants’ counsel put the dilemma thus : "If the night is light enough to see the gangway, no railing or light is necessary to enable a person to avoid it, and if the night is too dark to allow of its being seen, then a person groping around in the dark and unconsciously walking into it is guilty of such negligence as to preclude hini from recovering.” But if this plausible statement is absolutely correct, there never can be an accident of this description for which tho-injured party can recover. The idea seems to lie that there is no necessity for any precaution on the part of the wharf owners, because constant vigilance on the part of filoso who come there when it is light enough to see the danger will enable them to avoid it; and, duty or no duty, they must not' come without a light in the night time, or they will be set down as wanting in ordinary care, and so forfeit their right to protection or compensation. The argument establishes, if anything, too much. The questions are not of a character to be disposed of by a little neat logic. They are rather, as remarked by the court in Elliott v. Pray, 10 Allen, 384, "questions which can be best determined by practical men on a view of all the facts and circumstances bearing on the issue.” No such sweeping syllogism as this presented by defendants’ counsel can be adopted as a rule of decision. A man may be deceived by a half light, such as is described in the testimony here, and, using due care himself, may meet with an accident by falling into a chasm where he was not bound to expect to find one unguarded, and in such case, if lie is not a mere licensee or trespasser, and the owner of the premises owes him a duty, he is entitled to his remedy. It is noticeable that in arguing this point on the motion, the learned counsel for defendants fall back in part, upon their original contention that the customs officer " vras obliged to move about at his own peril.” Not so. His duty carried him there in — 322 — consequence of, and in connection with the business which defendants had established there. The jury probably thought that if he wont as a section of a torchlight procession he might as well have stayed at home; that he was not in search of an honest man, and had no need of a lantern; that it would take a cordon of custom house officers, exhibiting themselves with lanterns, numerous enough to surround the vessel constantly from the time she hauled into the wharf till she was unloaded, to prevent the mischief, while prudently conducted observation by one or two watching at the right times and seasons without making their presence known, would answer the same purpose. Seeing that the defendants did owe a duty to the public officer, and seeing too how easily they might, to all appearance, by a little precaution, have prevented his being made a cripple, if the "practical men” before whom the case was tried made allowances for the liability of the human senses to deception in a dim light, and acquitted him of a want of ordinary care in the premises, we are not satisfied that the conclusion they reached on this question of contributory negligence, is so plainly unjustifiable as to require us to send the case to a new trial. No complaint is made as to the amount of damages. Motion and exceptions overruled. AppletoN, C. J., WaltoN, Virgest, Libbey and SymoNDS, JJ., concurred.