Burke v. Boston & Maine Railroad

Knowlton, O. J. The plaintiff was repairing a door, of a building belonging to D. Whiting and Sons, standing on land leased to them for ten years by the defendant corporation. The building covered nearly all of the leased land, and the plaintiff with a fellow workman erected a staging by the use of a stepladder, a wooden horse and a plank, on other land of the defendant, for his convenience in doing the work. A side track of the defendant, nearly parallel to the line of this building, ran so near the staging that a car moving along it would strike the staging. The defendant’s servants had no knowledge of the erection of the staging. While the plaintiff was working upon it, a moving car threw him down and caused an injury, on account of which he seeks to recover damages in this suit. [182] If the defendant had invited the owners of the building to use this land in making repairs on that side of the building, it is very doubtful whether, on the evidence, the jury would have been warranted in finding that the plaintiff was in the exercise of due care in working without precautions upon a staging which he knew was in the line of passing cars that might be expected to come along the track at any time. But it is unnecessary to consider this part of the case, for we are of opinion that the defendant owed him no duty other than that which it owes to every trespasser or mere licensee not to injure him recklessly or wantonly. There is nothing to indicate wanton or reckless conduct on the part of the defendant or its servants. The only question of any difficulty in the case is whether the plaintiff was there by the defendant’s invitation. Between the defendant and the owners of the building there was no contract, oral or written, as to the use of the land, except the lease of the lot on which the building stood. There was testimony that the defendant’s land adjacent to the leased lot had been used previously in repairing the building. But there was no evidence of the extent of the use, or of knowledge by the defendant’s officers or agents that there had been any such use. The contention of the plaintiff on this part of the case is that a considerable part of this building was used in a milk business conducted by Whiting and Sons, in which they had occasion regularly to receive into the building freight over the defendant’s railroad, from cars on the above mentioned track, and that therefore there was an implied invitation to Whiting and Sons to use land outside of the leased property, in keeping the building in repair. It is argued that because the parties stood in the relation of consignor or consignee of property and carrier, and each had an interest in that part of this business which was done by the other, the defendant was so far a participant in the business of erecting and maintaining the building as, impliedly, to invite Whiting and Sons to use its land, outside of the leased portion, for the purpose of repairing the building. This argument is not well founded. The erection and maintenance of such a building may have been necessary or important to the successful prosecution of the milk business, and to the need of transportation for freight over the defendant’s railroad, [183] just as the possession and maintenance of teams and the employment of men probably were necessary to the business of Whiting and Sons, and, indirectly, to the hiring of transportation for milk over the defendant’s railroad. But the defendant had no such direct relation to these departments of the milk business as to warrant an implication that it assumed obligations or volunteered assistance to Whiting and Sons in such matters. So far as the use of the cars, or the tracks, or the land between the tracks and the building, by Whiting and Sons was incident to the convenient prosecution of the freighting business, in relation to which they made mutual contracts, there was an implied invitation to Whiting and Sons to use them. Turner v. Boston & Maine Railroad, 158 Mass. 261. Pratt v. New York, New Haven, Hartford Railroad, 187 Mass. 5. Bachant v. Boston Maine Railroad, 187 Mass. 392. But the lease of the land, the erection of the building and the maintenance and repair of it were all matters for the lessees to manage as they chose, in which the defendant had no direct interest, and in reference to which it stood in no relation of contract, express or implied. From the relations of the respective parties to the business of carrying milk on the railroad there can be no implication of an invitation to Whiting and Sons to use the defendant’s land in the repair of its building, erected for its own purposes, on land procured in the ordinary way. In the view of the evidence most favorable to the plaintiff his rights on the defendant’s land were only those of a licensee. Chenery v. Fitchburg Railroad, 160 Mass. 211. Johnson v. Boston Maine Railroad, 125 Mass. 75. Redigan v. Boston & Maine Railroad, 155 Mass. 44. It follows that the defendant owed him no duty to provide for his safety while he was working on the staging. Judgment for the defendant.