Brinilson v. Chicago & Northwestern Railway Co.

Siebeckee, T. The appellant avers that the place where the boy was injured is its property. This the respondent denies, and asserts that the place of injury is located on the bed of Lake Michigan, and hence not within the boundaries of the appellant’s private grounds. In the view we take of the case this question need not necessarily be considered in determining the issues raised and we therefore do not decide this controversy between the parties. [617] It is undisputed tbat tbe appellant maintained a breakwater at tbe place designated to protect its grounds from tbe action of tbe waters of tbe lake; tbat it bad filled with eartb tbe area between tbe breakwater and tbe dry land; and tbat it used and occupied tbis area for railroad purposes. As appears in tbe above statement of facts, tbe appellant bad covered tbe surface of tbe breakwater witb planking wbicb formed a firm and even walk or pathway along and above tbe waters of tbe lake, wbicb was used by tbe public as a footpath to pass and repass over these grounds and for walking along tbe edge of tbe lake. Boys bad made a practice of so using it and as a place for boating, fishing, and swimming. Tbe evidence fully justified tbe jury in finding tbat appellant’s agents and servants knew tbat tbe premises were being so used. It appears tbat there was a fence along tbe south line of appellant’s grounds, abutting on Polk street, but tbe evidence is in conflict as to whether or not tbe fence extended onto tbe breakwater, and tbe jury may well have found tbat tbis end of tbe breakwater was unobstructed and open so tbat people could pass without interference in going to and from tbe street onto tbe railroad grounds, and tbat an open passageway over tbe breakwater was thus afforded them. In tbe light of such facts and circumstances it cannot be said tbat persons who passed onto tbe breakwater and adjacent grounds were there under such forbidding circumstances as to make them trespassers. It seems reasonably clear tbat people customarily used tbis place as a footpath and tbat boys especially used it as a place for tbe purposes of boating and swimming. These uses of tbe premises must be held to have been within tbe knowledge of tbe railroad’s agents and servants and that an implied permission existed which justified persons in so using tbe breakwater and adjacent grounds. Under these circumstances tbe persons so passing over tbis place on these premises cannot be considered trespassers; they must be considered as having entered onto tbe premises witb tbe implied permission of tbe railroad company for tbe customary purposes. Tbe license to so use tbe [618] premises implies permission to so nse them, and the railroad company cannot now be heard to charge that such use constitutes a trespass. Under these circumstances persons making such customary use of the premises are licensees. The evidence sustains the claim that the decedent, at the time of injury, was using this place in the customary way, namely, as a footpath in passing over the breakwater, and his relation to the railroad company was that of a licensee. See Hupfer v. Nat. D. Co. 114 Wis. 279, 90 N. W. 191; Gorr v. Mittlestaedt, 96 Wis. 296, 71 N. W. 656; Muench v. Heinemann, 119 Wis. 441, 96 N. W. 800. With this relation existing between the appellant and the decedent, the legal duty devolving on the company is as recognized and declared in the Muench Case, that a licensee must be deemed to take the premises as he finds them, “and the licensor owes him no duty, save to refrain from acts of active negligence rendering the premises dangerous.” The case of Klix v. Nieman, 68 Wis. 271, 32 N. W. 223, is not at variance with this rule. The facts of that case show that the danger complained of was one connected with an unfenced natural pond on a private lot, but so remote from the street and sidewalk as not to make their use dangerous; nor was it shown that the owner had done anything to this pond to create a pitfall or snare liable to injure persons going onto the lot. In the instant case the facts are different, in that the alleged dangerous condition was created by the company, and the question is whether or not, in view of the fact that the company knew or ought to have known that both adults and children were resorting to and using the place for travel and amusement, the omission to keep the pit covered created a danger likely to cause injury to persons so using the premises with ordinary care. That the opening or hole in the cover of the steam pit, as described in the evidence, was dangerous seems self-evident from its very nature and condition. It is also clear that the hole in the planking that covered the excavation was not readily observed, and was ob619 soured by tbe steam rising therefrom through this hole and the cracks between the planks covering the pit. This condition of the place made the pit a dangerous trap or pitfall to persons on the premises, and the omission to observe and repair the planking constitutes active negligence on the part of the railroad toward them. It is contended that it is not shown that the company was negligent in permitting this hole to exist, because it had no notice or knowledge thereof prior to the day of the accident. The evidence discloses that a hole had been observed by various persons two or three months, one month, two weeks, and on the day before the accident. These evidentiary facts furnish a sufficient basis for the conclusion of the jury that the railroad company was guilty of a want of ordinary care in failing to discover the hole in the plank covering over the steam pit and in neglecting to repair it before the time of the accident. It is probable that the decedent had not observed the hole. His conduct in this respect must be viewed in the light of his age and the surrounding conditions and of the danger, and when so considered it cannot be held as matter of law to show that he was guilty of contributory negligence in producing' the injuries complained of. Cases illustrating the principles and grounds of liability under the circumstances disclosed here are Kinchlow v. Midland E. Co. 57 Kan. 374, 46 Pac. 703; Penso v. McCormick, 125 Ind. 116, 25 N. E. 156; Union Pac. R. Co. v. McDonald, 152 U. S. 262, 14 Sup. Ct. 619. We find no reversible error in the record. By the Gourt. — Judgment affirmed.