Hagan v. Delaware River Steel Co. , 240 Pa. 222 ( 1913 )

Opinion by

Mr. Justice Moschzisker,

This case was brought to recover damages for the loss of the life of Isabella Hagan. On the evening of February 12, 1910, at about 7 o’clock, Mrs. Hagan and a,n adult sister went to the iron and steel mill of the defendant company for the purpose of seeing their father who was employed there; they knocked at the office door, and some one designated in the testimony as “the watchman” responded; when they inquired for their father, he said, “go ahead down that way and you will find your pappy,” — indicating a direction with his hand. They went in the direction indicated along a paved walk to a point where it led off to the left by a well-defined unpaved path into the active part of the plant where the father was working; at the point in question another path or track led to the right, — this latter path being used by certain of the workmen as a way for reaching a pump which was located at the end of the paved walk, and also as a short cut to a part of the works. The night was “pitch dark” and the ground was covered with snow. The decedent had never been in the plant before, and the only light furnished was an occasional glare from the blast furnaces. When the two women reached the pump, instead of going to the left, for some unexplained reason they turned into the right-hand bypath. A little beyond, and to one side of this path, there was a long excavation covered with sectional iron plates; one of these plates was off, and after they had proceeded but a short distance Isabella Hagan stepped into the hole and received the injuries which caused her death. The trial judge entered a nonsuit, which the learned court below refused to take off, and the plaintiff has appealed.

We cannot see wherein negligence toward the deceased woman was proved; moreover, had she continued on the regular path which led to the active part of the plant, or even had she stayed on the path which she took, the accident could not have happened. As explained by one of her witnesses, “This pit had plates on it. If you kept on the path you would be all right. This girl must have stepped to the right three or four feet, because one of these plates was off. That is where we^séen her when we looked that night.” Counsel for the appellee correctly epitomizes the case in the following excerpt from his paper book: — “A woman for purposes exclusively her own, gained admission, after dark, to the plant of a large and partially unused steel works to- find her father, who was a workman employed at the further end of the plant. She was not familiar with the surroundings, and according to her testimony, there were no lights. She started down a path, which if pursued, would have led her in safety to her destination; but she wandered from this path, and followed a track in the snow down into an abandoned section of the plant, where she fell off a retaining wall, into a deep pit or depression, receiving injuries which caused her death;” and this narrative negatives the plaintiff’s right to recover.- Although-the man who pointed out the general direction which the women were to pursue in order to find their father, Was called in the testimony “the watchman,” there was no evidence to show what his duties were or to indicate that he had authority to admit strangers to the plant-after dark, and for that reason, toward the end of the trial, the presiding judge struck- out all the testimony concerning his declarations at the time he admitted the decedent; since the plaintiff failed to pror duce any evidence from which the authority of the so-called watchman could be found, either directly or impliedly, we cannot say that error was committed in striking out the testimony in question. With these proofs out of the case the deceased woman was but a trespasser, or should we view the matter as though the testimony was still upon the record, she was at most no more than a licensee; and from either point of view no negligence toward her was shown. ■ ■

“Invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the .party .using it”: Curtis v. DeCoursey, 176 Pa. 446, 450. There is nothing in the. evidence to indicate that the opening through- which the deceased fell, was unnecessary to the operation of the plant or that under ordinary circumstances it constituted an unusual danger. In the nature of things, a large industrial establishment of this kind is always beset with dangers of the character of this opening, made necessary by the work pursued; and as expressed by the present Chief Justice in Thompson v. B. & O. R. R. Co., 218 Pa. 444, 446, “The law fully recognizes the right of him, who, having dominion of the soil, without malice does a lawful act on his own premises, and leaves the consequences of an act thereby happening where they belong, upon him who has wandered out of his way, though he may have been guilty of no negligence in the ordinary acceptation of the term.” “A person using the private property of another by permission or sufferance,. takes upon himself the incidental risk”: Weaver v. Carnegie Steel Co., 223 Pa. 238, 240, and cases there cited. Hence, if we consider the decedent as a mere trespasser, the rule that “it must appear that there was wanton or intentional injury inflicted” (Gillespie v. McGowan, 100 Pa. 144, 150) would apply and there could be no recovery; or, if she be viewed as a licensee, then under the principles just stated, no negligence was shown toward her and a nonsuit was properly entered.

But the appellant contends that certain testimony of-, fered for the purpose of showing that outsiders were permitted in the defendant’s plant at night should have been admitted. The material part of this assignment shows the following question put to one of the workmen in the defendant’s plant, and the ruling thereon: — “Q. Do you or do you not know whether or not people outside of the employees at night time were permitted to go through and around-these works where this path was?” This was objected to, the objection was sustained, and an exception was granted to the plaintiff. The trial judge had previously given counsel for the plaintiff permission to show that the witness saw people using the paths in question, and many of the witnesses did tell of the uses made of these ways; but there was no claim or contention that the deceased had knowledge of or relied upon the fact apparently sought to be shown, i e., that these paths were open ways in general use by outsiders. The plaintiff did not take the position that the decedent had been misled to her injury by depending upon such knowledge and assuming that the paths would be guarded accordingly; on the contrary, the claim was that she had no familiarity whatever with the plant. Under the circumstances we do not see that error was committed in the ruling complained of.

The assignments are all overruled and the judgment is affirmed.