Dashields v. W. B. Moses & Sons

Mr. Justice Van Orsdel

delivered the opinion of the Court:

Two questions are presented in the brief of counsel for the appellant: “First: Was appellant on appellee’s premises by way of invitation ? Second: If not, could he be actively led into a hidden danger, without warning, and thereby be entrapped to his hurt, without fault on his part?” If the first question can be answered in the affirmative, it will be unnecessary to consider the second.

It will be observed that, by the terms of the insurance policy, the insurance company reserved, as a condition precedent to the issuance of the policy and its liability thereunder, the right, through its agents, to inspect the sprinkler system at all reasonable times. Appellant was the duly authorized agent of the insurance company, sent to appellee’s place of business for this purpose. No objection was interposed by appellee to the inspection being made. An employee of the appellee company was designated to guide appellant through the building. This constituted an invitation to the appellant to make the inspection. Appellant was not, therefore, in the eyes of the law, a mere licensee.

In the case of Bennett v. Louisville & N. R. Co. 102 U. S. 577, 26 L. ed. 235, Mr. Justice Harlan, distinguishing between a mere licensee and a person on the premises of another by invitation, said: “The facts disclosed by the pleadings, and by the demurrer conceded to exist, seem to bring this case within the rule, founded in justice and necessity and illustrated in many adjudged cases in the American courts, that the owner or occupant of land who, by invitation, express or implied, induces or leads others to come upon his premises, for any lawful purpose, is liable in damages to such persons, they using due care, for injuries occasioned by the unsafe condition of the land or its approaches, if such condition was known to him, and not to them, and was negligently suffered to exist, without timely notice to the public or to those who were likely to act upon such invitation. New Orleans, M. & C. R. Co. v. Hanning, 15 Wall. 649, 21 L. ed. 220; Carleton v. Franconia Iron & Steel Co. 99 Mass. 216; Sweeny v. Old Colony & N. R. Co. 10 Allen, 368; Wharton, Neg. §§ 349-352; Cooley, Torts, 604-607, and authorities cited by those authors.” In the same case the learned justice further said: “It is sometimes difficult to determine whether the circumstances make a case of invitation, in the technical sense of that word, as used in a large number of adjudged cases, or only a case of mere license. ‘The principle,’ says Mr. Campbell, in his treatise on Negligence, ‘appears to be that 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 person using it.’ ”

It is difficult to understand on what ground appellee can claim that the inspection of this plant was not for its benefit. It was not only a condition of the insurance policy, which gave the insurance company the right to send appellant to make the inspection, but it was for the benefit of appellee that such inspection should be made, so that damage by leakage might by such inspection be averted. That appellant had a right to be-in appellee’s building when the accident occurred is conceded, and that he was there, not as a mere licensee, but by invitation, the law will imply from the relations of the parties and the mutual benefit to be derived from the inspection. .

It is contended by counsel for appellee that under the evidence, appellant was guilty of such gross contributory negligence as would forbid recovery by him in any view of the case. Contributory negligence is usually a question of fact for the considreation of the jury. Where there is an issue of fact upon which reasonable minds might disagree, the court is not justified in withdrawing the case from the consideration of the jury. We think the evidence clearly presents a question upon which reasonable minds might differ as to whether or not the conditions in the boiler pit were such as to apprise the appellant, in the exercise of reasonable prudence and care, not only of the existence of the pit, but that to cross it he was required t-o walk upon a plank. His testimony is to the effect that this was the first time he had ever been in the building; that the first knowledge he had, either of the existence of the plank or of the pit, was when he fell into the latter; and that it was so dark in the boiler room he could not see where he was going. He was following the guidance of the engineer, who invited him to come that way. Under this state of facts, the question of negligence was clearly one for the jury, and it was error to give the instruction complained of.

The judgment is reversed, with costs, and a new trial granted. Reversed.