Gerwig v. Loverock

Mr. Justice Adams

delivered the opinion of the court.

The evidence is that appellee went to appellant’s store solely by the request of his employer, the Fidelity and' Casualty Co., and that appellant did not know him, or that he was coming, and fails to show that appellant had any interest in his being there, and that, on appellee introducing himself and stating his business, appellant merely gave him, as appellee testified, permission to inspect the building." Under these circumstances, appellee was a mere licensee and appellee owed him no duty and was under no obligation to change the condition of its premises for his protection. The general doctrine in such case is thus stated in Buswell on Personal Injuries, 2d Ed., Sec. 77:

“ A mere naked license or permission to enter upon the premises will not create, in favor of the person entering, or impose upon the owner or tenant who grants the license, an obligation to provide against dangers or accidents which may arise out of the existing condition of the premises; for the licensee goes upon the premises subject to all the dangers attending his going and so enjoys the license subject to its concomitant perils. (Sweeney v. O. C. & N. R. R. Co., 10 Allen, 368; Zoebisch v. Tarbell, 10 Allen, 385.) Thus, the owner is not liable for injuries received by a license for falling into an excavation left unfenced upon the land (Reardon v. Thompson, 149 Mass. 267), or by the existence of obstructions such as logs lying in the path. Nor is the owner of a building bound to fence or enclose dangerous machinery contained in it for the protection of a mere licensee. (Matthews v. Bensel, 51 N. J. L. 30; Larmore v. Crown Point Iron Co., 101 N. Y. 391; Galveston Oil Co. v. Morton, 79 Texas, 400.) ”

The authorities in the notes are inserted in parentheses in the text for convenience. Gibson v. Leonard, 143 Ill. 182; Fitzpatrick v. Cumberland Glass Mfg. Co., 61 N. J. L. 378; Hamilton v. Minneapolis Desk Mfg. Co., 78 Minn. 3.

In Gibson v. Leonard, supra, the fire insurance patrol responded to an alarm of fire on the defendant’s premises, and finding the door locked, forced it open. A member of the patrol was injured by the'falling of the counter weight of an elevator in the building.

In Hamilton v. Minneapolis Desk Mfg. Co., supra, a member of the fire department of the city of Minneapolis entered the defendant’s premises, in the discharge of his duty, to extinguish a fire, and was injured by falling into an unguarded elevator shaft. Held, in each case, that there could be no recovery.

But even though it were conceded that appellant owed some duty to appellee, we are of opinion that appellee’s .conduct, as testified to by himself, was such as to preclude a recovery. He had been in the middle or store room, and had found that room so dark that he could not see the safes, and in order to see their names and numbers he and Gerwig had to light matches. After returning to the office, and while Gerwig was attending to a call at the telephone, appellee, without notice to Gerwig or any one, and without asking for guide or light, deliberately entered the middle room and passed thence into the shipping room, the whole floor north of the office partition being, as he testified, in total darkness. That such conduct, under the circumstances known to appellee, was negligence which materially and proximately contributed to his fall into the elevator shaft, no reasonable mind can doubt, and we hold, as matter of law, that it was negligence which precludes a recovery.

In Brugher v. Buchtenkirch, 167 N. Y. 153, the court say:

“ One is not justified, unless under some special stress of circumstances, in going on a tour of discovery in a strange building, when it is so dark that he is unable to see where he is going, or with what obstructions he may meet. The case, Piper v. N. Y. C. & H. R. R. R. Co., 156 N. Y. 224, is exactly in point. It was there said : 1 The plaintiff was guilty of contributory negligence in utterly failing to use that prudence which was especially incumbent upon him under the circumstances of the situation. The darkness called upon him to use it, and had he done so, the accident could not, within ,any reasonable probability, have happened. A person whose power of vision is temporarily obstructed by some intervening condition, should take the greater care, and should, if it be possible, await its passing away. If he neglects to proceed cautiously, he must accept the consequences of his undue precipitation.”

Appellee was the only one in the shipping room when the accident occurred, and while the defense attempted to prove that the light in the room was fairly good, appellee testified that he could not see, and if, for any cause, he could not see, his conduct in the premises was negligent. He also testified that it was very dark, and he can not now be heard to say that it was not.

Appellee has assigned cross-errors, and his counsel, in argument, complained of certain instructions; but, in view of the conclusions above stated, we deem it unnecessary to consider the instructions.

The judgment will be reversed.