Nicholson v. Erie Railway Co. (41 N.Y. 525, 1870)

E. Darwin Smith, J.

The right of action in this case must rest upon the -grounds upon which it was put by the circuit judge in his charge to the jury; that is, upon the ground of an omission on its part properly to secure the cars left in the yard of the Buffalo iron works. The charge directs the jury that it was the duty of the defendant to set the brakes or otherwise fasten the cars, when they were left by it in the said yard of the Buffalo iron works.

No act of omission or of affirmative misfeasance, fault or wrong is proved or pretended, although a recovery might have-been had upon the allegation of the complaint, upon this branch of the law of negligence.

Negligence consists in the comission of some lawful act in a careless manner, or in the omission to perform some legal duty, to the injury of another. It is essential to a recovery in the latter case, to establish that the defendant owed at that time some specific, clear, legal duty to the plaintiff or the party injured.

The first inquiry, therefore, which arises in the examination of this case is, what were the relative legal rights of Nicholson, the deceased, and the defendant in respect to the locus in guo.

The deceased was struck and killed on the defendant’s premises. This branch track, whatever may have been the rights in respect thereto, between the defendant and the Buffalo Iron Works Company, must be-deemed, for the purpose of this suit, the property of the defendant. It was a track constructed to be used as a railroad track by the defendants with their engines and cars, to accommodate their freight business in connection with, and for the benefit of the iron works. The cars, which caused the injury, were on their track, where the defendants had a clear, legal right to place and keep them. They were placed there for a lawful purpose, and in the proper discharge of their usual and ordinary business.

They had the same unqualified right which every owner of property has to do with his own as he pleases, and keep it and use it where and as he pleases, on his own ground up to the point, when such use becomes a nuisance.

Nicholson, the deceased, on the contrary, was not on his own ground. He was where he had no legal right to be. At most, he had a mere license to cross the defendant’s track, a license implied from use, and from the fact that such use had not been expressly forbidden. But such license created no legal right, and imposed no duty upon the defendant, except the general duty which every man owes to others, to do them no intentional wrong or injury.

No relation existed between the defendant and Nicholson to create any particular duty, such as exists between a master and servant, or employer and his employee. The complaint alleged that the said James Nicholson was traveling upon a public highway and lawfully crossing the defendant’s track. If the fact had been so, the defendant and Nicholson would have stood upon common ground, and could have had equal rights in such highway, and the defendant would have owed to him a clear legal duty; but the case seems to me to be without the first element to create a legal duty on the part of the defendants to set or secure their cars in respect to the rights of said Nicholson. He was not in their employ. He was not in the employ of the iron company. He had no lawful business at the time on their track; no legal right to use or cross it; and would have been simply excused from liability as a trespasser on the naked ground of a license, implied from previous use without objection.

The case is within the principle, I think, asserted in Hounsell v. Smyth (97 Eng. Com. Law, 731).

In that case, the question arose upon demurrer. The complaint alleged that the defendant had a certain quarry which had long been open and worked for getting out stone, and which was situated upon certain waste land, which was considered open to the public; and that all persons having occasion to come upon or over said waste land had been used and accustomed to go upon, along and across the same without interruption or hindrance from and with the license and permission of the owners -thereof; that said quarry was between two highways; and that the defendant left the same unfenced and took no care to guard it; and that plaintiff, having occasion to pass over said waste land in a dark night, fell into said quarry and was injured.

The court sustained the demurrer, holding that the defendant owed no duty to the plaintiff. In respect to that part of the complaint, where it was alleged that all persons having occasion to cross or pass over the said waste land, have been used and accustomed to go upon, along, and across the same without interruption or hindrance from, and with the license and permission of the owners of such waste land, the learned judge said: “No right is alleged. It is merely stated, that the owners allowed all persons who chose to do so, for recreation or for business, to go upon the waste without complaint; that they were not churlish enough to interfere with any person who went there. One who thus uses the waste has no right to complain of any excavation he finds there. He must' take the permission with its concomitant conditions, and it may be perils.”

That is precisely this case. All who pleased were permitted to cross the open common waste ground, adjacent to the defendant’s track, and the track itself, without hindrance; but it was at them own risk and peril. The defendant undertook or assumed no duty in respect to such persons. As was said in the" above cited case, “all that can be said is, that the plaintiff had a tacit permission to cross the track.

The same principle is asserted in Southcote v. Stanley (1 Hurlst. & Norm., 247); and in Bolch v. Smith (7 Id., 732).

The case of Driscoll v. Newark & Rosendale Cement Co. (37 N. Y., 638), is not in conflict with these cases. In that case the , defendant performed a lawful act in a careless manner; and the case belongs to the class, where an action for negligence lies for misfeasance in the commission of an act lawful in itself. The defendant fired a blast in a mine, without taking the proper precautions to warn persons who might be in danger from the explosion.

The charge of the learned judge at the circuit on this point, and his refusal to charge as requested on the same point, were therefore erroneous, and the exceptions to such charge, separately, well taken. As this point is decisive of the case, I have not deemed it expedient to discuss the other questions presented in the points. The judgment should therefore be reversed, and .a new trial granted with costs to abide the event

Earl, Ch. J.

At the time the intestate was killed, he v as passing over the branch track upon defendant’s land. It cannot be doubted from the evidence, that he had an implied license to cross at that point, and hence that he was lawfully there. He was not there by invitation of the defendant, nor in the business of the defendant, but for his own purpose on his way ho'me. "While he was lawfully there, he had no right as against the defendant to be there. It could at any time have revoked the license and then he could not have crossed at that point without being a trespasser.

The cars were lawfully upon the branch track, and the defendant had the right to have them there. The defendant owed the intestate no active duty. It owed him no duty whatever, except such as every citizen owes another. It had no right intentionally to injure him, and would be liable if it heedlessly or carelessly injured him while performing its own business. It owed-him a duty to abstain from injuring him either intentionally or carelessly, but it did not owe him the duty of active vigilance to see that he was not injured while upon its land merely by permission for his own convenience. If the point where the intestate was killed had been a public highway, or if at the time he had been a passenger in a car upon the main track, and' he had been injured by collision with the cars coming down the branch track, or if in any other way he had been not only lawfully, but in the exercise of a right at that point, the defendant would have owed him a duty to see that the cars upon the branch track were properly secured, but as it was they owed him no duty and cannot-be charged, as to him, with negligence in not blocking or fastening the cars. In reaching this conclusion, I think I am sustained both by principle and authority. In the case of Southcote v. Stanley (1 Hurl. & N., 246), the declaration alleged that the defendant was possessed of an hotel, into which he had invited the plaintiff to come as a visitor, and in which there was a glass door which it was necessary for the plaintiff to open for the purpose of leaving the hotel, and which the plaintiff by the permission of the defendant, and with his knowledge, and without any warning from him, lawfully opened for the purpose aforesaid as a door which was in a proper condition to be opened; nevertheless, by and through the mere carelessness, negligence and default of the defendant the door was then in an insecure and dangerous condition and unfit to be opened, and by reason of the said door being in such insecure and dangerous condition, and of the then carelessness, negligence, default and improper conduct of the defendant in that behalf, a large piece of glass fell from the door and wounded the plaintiff. The defendant demurred, and it was held that the declaration disclosed no cause of action. The counsel for the plaintiff attempted to uphold the declaration upon the ground that the plaintiff was lawfully in the hotel. Baron Bramwell recognizes the distinction I have above alluded to, and places his concurrence in the decision upon the ground that the declaration alleged no “ act of commission,” but merely “want of care—a default in not doing something.” In Gautret v. Egerton (2 Law Reps., C. P., 370), the declaration stated that the defendants were possessed of land with a canal and cuttings intersecting the same, and of bridges across the canal and cuttings communicating with and leading to certain docks of the defendants, which land and bridges were used with the consent and permission of the defendants by persons proceeding to and coming from the docks; that they wrongfully and improperly kept and maintained the land, canal, cuttings and bridges, and suffered them to be in so improper a state and condition as to render them unsafe for persons lawfully passing along and over the said land and bridges toward the said docks; and that one G-., lawfully passing over and using the bridge i, through the wrongful, negligent and improper conduct of the defendants, fell into one of the cuttings and was drowned. It was held on demurrer that the declaration disclosed i