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Opinion Per MOUNT, J.

[58 Wash,

the cause of death is mere conjecture; (2) because it is not shown that the condition of the crossing caused the decedent to attempt to cross at the place where he did, and (3) because the deceased attempted to cross the rails at a place other than the one prepared for such purpose.

These last two positions must be sustained. The fact that the space between the house track and the platform was narrow and soft, so that it was difficult for teams to turn around therein, is of no importance in this case, because it was shown by the respondents' evidence that the deceased did turn his team around and back his wagon so that the rear thereof was against the platform where he unloaded his trunks. It is plain, therefore, that the deceased could readily have driven out over the crossing the same way he drove in. It is true there is some evidence to the effect that wagons frequently “slewed” when an attempt was made to cross the rails at an angle, and this is no doubt a fact. But there is no evidence in the record to show that a wagon once turned around could not be driven out over the regular crossing without crossing the rails at an angle, and there is no evidence that it was necessary for the deceased to attempt to cross the rails at the place where he did, viz., three or four feet to the east of the crossing which the company maintained. The crossing was at the corner of the platform nearest the depot building. It was sixteen feet in length, but some steps leading from the platform occupied two feet of this length, leaving the driveway fourteen feet in width. This was clearly sufficient for the purpose for which it was used or intended.

If the deceased had used this crossing and, by reason of its defective or dangerous condition, had been injured, complaint then might be made that the company was negligent; but when it is shown and conceded that he attempted to cross in another place, not used or intended as a crossing, the company may not be held for an injury occurring there, because the negligence of the company was not the cause of

Mar. 1910]

Opinion Per MOUNT, J.

the injury. The reason why the deceased attempted to drive his wagon across the rails of the track rather than over the crossing is not shown. It was clearly more dangerous to attempt to cross the rails where no crossing was prepared, than it was to attempt to cross where a crossing was constructed for that purpose. No excuse is attempted, excepting the fact that it was difficult to turn a wagon, such as deceased used, in the narrow space and soft cinders between the house track and the platform. But this excuse failed when it was shown that he did turn his wagon, which was backed up against the platform, before he started away. Where a railroad company has prepared a crossing over its

a rails, this is an invitation to the public to make use of such crossing, and the company would be liable to a person injured in using such crossing while exercising ordinary care, if the crossing proved to be unsafe for any cause of which the company was bound to take notice. If a person voluntarily or negligently turns aside from such crossing, and uses another way which is not held out as a crossing and which is obviously more dangerous, there is no liability on the part of the company. 33 Cyc. 929; Thompson, Negligence, $ 6269; Carey v. Inhabitants of Hubbardston, 172 Mass. 106, 51 N. E. 521; Kelley v. Town of Fond Du Lac, 31 Wis. 179; Tasker v. Farmingdale, 85 Me. 523, 27 Atl. 464. This is a reasonable rule, and the facts in this case are controlled by it. It is not claimed that the deceased could not see the crossing, or that the company was negligent in any other respects than those above mentioned.

Under all the facts in the case, there is no liability against the appellant, and the order granting the new trial is therefore reversed, and the cause ordered dismissed.

RUDKIN, C. J., CROW, PARKER, and DUNBAR, JJ., concur.

Opinion Per MOUNT, J.

[58 Wash.

[No. 8409. Department Two. March 25, 1910.]

ALEX HANSON, Respondent, v. SPOKANE VALLEY LAND AND WATER COMPANY, Appellant.1

NEGLIGENCE-WAYS-INVITATION-LICENSEE-PLEADING. An allegation that a road was a private road and way of necessity, constantly traveled over by the public generally, has the effect to charge that it was a public way over private land, and use thereof by the public for some years amounts to an implied invitation to the public to use it, so that one using it would not be a mere licensee. SAME-WAYS-PERSONS LIABLE-EXCAVATIONS. A water company making an excavation across a public way on private land, is liable for consequent injuries to a traveler impliedly invited to use the road, although the company was not the owner of the land.

SAME-WAYS-INVITATION.

A well-defined private way connecting with the main traveled road, left open to and much traveled by the public, amounts to an implied invitation to the public to use it.

SAME-WAYS-NEGLIGENCE. It is negligence to dig a ditch across a public road on private land, and leave the same unguarded at night.

Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered June 5, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by reason of defendant's ditch across a highway. Affirmed.

Allen & Allen, for appellant.

A. G. Gray, John M. Gleeson, and Joseph F. Morton, for respondent.

MOUNT, J.-The respondent in this case was injured by falling into a canal across a way which he was traveling after night. He recovered a judgment against the appellant, which constructed the canal. Appeal is prosecuted from that judgment.

The complaint upon which the case was tried alleged, among other things, that on the 1st day of January, 1908

'Reported in 107 Pac. 863.

Mar. 1910)

Opinion Per MOUNT, J.

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and for some years prior thereto and ever since said time, there was and is a well defined and traveled private road and way of necessity which the public generally, constantly, and daily traveled over and upon, and the same was and has been for many years last past open to travel as aforesaid, and is a well-defined road running in a northerly and southerly direction through about the middle of the east half of section 4, township 25 north, range 45 E., W. M., said road being about a mile long and connecting with the public highway on the north line of section 4; that during the early part of the year 1908, the defendant company commenced to construct a large irrigation ditch in an easterly and westerly direction across said section 4 and across said road at right angles; that in constructing said ditch the defendant company excavated on the east and west up to the line of said road, and then ceased to excavate for some period of time unknown to the plaintiff ; that said road remained in said condition unobstructed by any excavation for some period of time unknown to the plaintiff, and during said time said road was traveled by the plaintiff and the public generally; that subsequently, about the 8th day of June, 1908, the defendant company carelessly and negligently extended said ditch six to eight feet wide and one and one-half to two feet deep, across said road, and carelessly and negligently allowed said ditch to remain without any barrier, lights, or warning to the public and the persons traveling over said road, and on or about the 18th day of June, 1908, at about nine o'clock in the nighttime, the plaintiff was traveling over said road on horseback when the horse fell into said ditch and caused plaintiff to be thrown upon the horn of the saddle, permanently injuring the plaintiff.

It is argued by the appellant that the court erred in overruling his demurrer to this complaint, and also in overruling his objection to the introduction of any evidence under it. This argument is based upon the fact that the complaint alleges that the way was a "private road and way of neces

Opinion Per MOUNT, J.

(58 Wash.

1

sity,” and it is not alleged that the way belonged to the plaintiff, and that the only interest which the plaintiff had therein was as one of the public, and that there is no allegation that the owner of the way invited the public to use it. It is argued from these facts that the plaintiff and the public using the road were mere licensees, and that the owner of the land owed no duty to a traveler thereon except to avoid wilful wrong and wanton carelessness. While the complaint alleges that the road was a private road and way of necessity, it also alleges in that same connection that the road was traveled over by the public generally, constantly, and daily for some years prior to January 1, 1908. The effect of these allegations is that the road was a public way over private land. The whole allegation taken together could mean nothing less. It is not claimed that the plaintiff was the owner of the way, but he certainly had the same right as any of the public to use it. While the complaint does not directly allege an invitation to the public, it appears that the public made use of the way for “some years prior to Jan-. uary 1, 1908,” and that the way connected with the public highway on the north of section 4. This amounts to an implied invitation, because public user long continued will imply an invitation. Phillips v. Library Co., 55 N. J. L. 307, 27 Atl. 478. Or it may be implied when an owner by acts or conduct leads another to believe that the land was intended to be used as he used it, and that such use is not only acquiesced in by the owners, but is in accordance with the intention or design for which the way was adapted or allowed to be used. Turess v. New York S. & W. R. Co., 61 N. J. L. 314, 40 Atl. 614.

It follows, therefore, that the respondent was not a mere licensee. He was an invitee under the alleged facts. Such invitation would continue so long as the way remained open and the public availed itself of such use, and while continued, the owners and others would be liable the same as though such road were regularly laid out and owned by the

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