88 F. 860 -

86'0

88 FEDER4L REPORTlllR.

withont its consent, and under the reservations made by the city of Atlanta in its ordinances granting such consent 'to the Atlanta Consolidated Street-Railway Company, the power is not reserved to the city of Atlanta to pass any ordinance which it sees fit, compelling the Atlanta Consolidated Street-Railway Company to give transfers and issue transfer tickets between the several Jines, of said company. These couchisions, the reasons for which are found in· the opinion of the circuit court on the demurrer, dispose of this appeal. The decree of the circuit court appealed from.is affirmed.

BERLIN MILLS CO. v. CROTEAU. (Circuit Court of Appeiils, No. 212.
,; f

Circuit.

July'19, 1898.)

1.

NErILIGENClll....,DANGEROUS

The requirements of reasonable foresight and reasonable precalltlon to prevent injury to another do not ltJ:lpose on an owner a duty to keep hIs premises or work in a suitable coudition ,forthose Who come thereon solely for their own purposes, without any enticement, allurement, Inducement, 01' express or Implied assurance of safety. As to such persons the rules regulating the duty of a master to his servants do not apply. A stranger went into'a sawmill to collect. money from ODe of tbe em1'0 reach the employli, be walked along a ra ilroad on a descending grade, 'down which cars were' 'allowed to pass by their own momentum, and· witqolUt a brake. As he.approltched the workman, the latter called to him'to "look out"; and, witUoutturning round to see wh;!t the danger was, Ile jumped between two .cars stapding. on the traCk, and was Injured by the ,desceqdlng car striking agalbst them. If he had stood still, or moved In the opposite direction, he would have been safe, Held, that his misapprehension 'of the signal 'of the worl,man was the proximate cause of hIs Injury, land the mm owner was not liable.
·. .

QR PREMISES.

I.

SAME....... PROXIMATE CAUSE.

In Error to the Circuit Court of the United States for the District of New Harr;iPshire. Robert N:, Chamberlin and Irving W. Shurtleff, on brief), for plaintiff in error. Harry G. Sargent, William a. Pllllle, and Edward C;Niles, for defendant in error. 'Before Circuit· Judge,· and WEBB and,· BROWN, DistHct J udgas.
dJ;

: BROWN, District'iJudge. .'rbisis, an. actlon 0ll the 'C/l,se .by Albert Croteau against the Berlin Mills Company for personal injuries rethrough' being crushedb.etween two Cars in, tlle. basement of the comptmy's sawmill. ,Three car tracks in this were 'llsed for removing lumber and waste to the yard·.. F.rorn 350 to 450 car loads were ,removed each day. When empty, the cars were drawn by horsesd:o a point-in the yard where tbe,grade of the tracks began to descend.! The horses were then,deta9laeP, and the cars allowed to run down the descending grade into the, basement. The
1

BERLIN MILI.8 CO. V. CROTEAU.

8fH

cars were of smaller size than those ordinarily used on railroads. Croteau was not an employe of the company, but on the day of the accident went to the company's yard to see two workmen who were indebted to him, and who had previously promised· to give him in payment orders upon the company for clapboards, to be delivered to Croteau and charged to the workmen. Having procured from one of the workmen, whom he found in the yard, an oral order, which was accepted by the company's selling agent, Croteau, according to his testimony, said to the agent:
.. 'You walt for me here. There Is another man under the mill who owes me some money, and he told me he would give me an order the other day, and I would go for him;' and he said, 'All right.'''

Croteau then went to the mill, and walked down into the basement, upon the middle track. Although it appears from the evidence that Croteau knew that the tracks were in use,-to some extent, at least,he notified no one in charge of the cars that he was going under the mill; but on upon the middle track, into the basement, without looking behind him. The mill was running, and there was considerable noise from the machinery and saws. After going some 60 feet into the mill, he saw the man he sought, Valliere, working upon the further side of a car that stood on the track next to that on which Croteau had entered the mill. On the track where Croteau was, there were no cars. On the next track, at adistance of 4 or 5 feet from the car that was between Croteau and Valliere, stood a second Cal'. Croteau, upon seeing Valliere, made a signal to him signifying, "Come here." At that moment four cars were coming down from the yard,--·not upon the track where Croteau stood, but upon the next track, whereon stood the two cars, at a distance of. 4 or 5 feet apart. Croteau's description of his conduct is as follows:
... · · At the same time I was making him a sign to come here, they hollered. 'Look out, look out.' Q. What did you do? A. I ran between them two cars. I didn't think them cars was going to move out of there, because· they was half loaded. I made a jump between those two cars. there. I thought, because they hollered out, something was coming on the track where I was. If they didn't boller, I Would be all right there. · · >I< I suppilsed, when tbey said, 'Look out,' there was a train coming on the track where I was. Q. And, Instead of looking to see, you jumped right between the cars in front of yoU? A. Yes, sir."

The descending cars struck the first standing car, and forced it against the second car,crushing Cr\lteau's leg between the two cars so that amputation was necessary. Although we are of the opinion that, upon the evidence of Croteau himself, he was guilty of such negligence as would preclude a recovery even had the company been negligent, we are also of the opinion that the company was guilty of no breach of duty to the plaintiff, and that the verdict holding the company liable was clearly unjustifiable. The errand which took Croteau under the mill was entirely his own, and had no connection with the business of the company. While his presence in the yard to procure clapboards was possibly connected with the business of the company, his going under the mill was merely to collect a debt from Valliere. This errand was no more the business of the company"than if he had gone under the mill to borrow

852

88

FEDERAL RIllPORTER.

money of VaJliere, instead of to coUect a debt. 130 fa,r ,as the com· pany's' business of selling clapboards afforded an invitation to come upon its premises; such, invitation was restricted to the yard or office, and did nat extend to the basement of the mill. The rule of law ap· plicableto 1Jhepresent case is not, therefore, the Qr,oad and indefinite general proposition that, so far as there exist reasonable grounds for apprehending danger"a cOl1responding duty arises to take precau· tions. The cases furnish much more specific rules to aid owners of premises to understand their obligations. These, specific rules are not inconsistent with, but are narrower than, that broad proposition. In Pol. Torts, pp. 36, 37, it is said: .
"Now, a reasonable man caJ 'be guided only by a reasonable estimate ot probabllitles. ! ' If men went, about to guard themselves, against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human atl'alrs could not be carried on at all," etc.

H is well serf:tled that the of reasonable foresight and reasonable precaution are not to be so extended as to impose upon an owner a duty to keep his premises or work in a suitable condition for those who come thereon solely for their own purposes, without any or express or inqllied assurance enticement, allurEilllent, of safety. Sweeny v. Railroad Co., 10 Allen, 368, 372,,373; Beehler v. Daniels, 18 R.I. 563, 29 AU. 6; Bigelow, Cas.Torts, p.705. That a stranger, on his own business, may find his way into private premises or workshops, where hamrdous business is conducted, is always a possibility; but the duty of vigilance to guard against injury therefrom is notcast upon the owner,bv.t upon the intruder, who is bound at his peril to ,keep away from,places or machines whereof he is ignorant, and who is not entitled to, qemand, that business operations shall be conducted with regard to his presence or safety. While there may exist circumstances of an exceptloI)al character in which an appearance of safety tends to lead or entice a trespasser or licensee into peril, so that the premises become a "trap" giving rise to a duty to safety ofJ;Ilere licensees, and even of trespasstake precaution The nature of ers, the present case is obviously npt Of the work carried on by the company,:a,nd its cars, known by Croteau: to be running at intervals, afforded a warning, instead of an assurance of safety. Such perils as arise from the ordinary use of the premises are not a trap., Redigan,v. Railroad Co., 155 Mass. 44, 28 N; E. 1133. !tis contended,however, that the company was guilty of negligence in running its cars without brakemen. But whether ol;'not it was negligent towards those persons rightf.ully on or about its tracks is a question entirelydis,tinct from that ,of. its duty to Oroteau. In detetlmlning whether 1Jhedefendant is negligent, in a;giyen case. plaintiff at tbetime is to be considered, and . not his general dlUty,or his duty Fitzgerald v. Paper Co., 155 Mass. 155, 159, 29 N. E. 464. Etnployerand employed may· consent td 'the adoption ·of methods which, facilitate the' work, though they increase the!tisk, and give rise to a necessity for. extreme caution. These are matters to be regulated between master and servant An inexperienced intruder cannot limit the master's right to,use mean$ that may be ,hazardous rto those not familiar the premises a,-d;

M'ELROY V. BRITISH-AMERICA ASSUR. CO.

863

with the perils of the employment. June v. Railroad Co., 153 :\1:ass. 79, 2(i N. E. 238. The contention that the plaintiff's knowledge was of a safe method of running the cars (i. e. with brakemen), and that his reliance upon such knOWledge in some way contributed to the injury, hardly requires consideration. The plaintiff did not jump upon the track where he was injured for the reason that he supposed that the cars onthat track would be stopped or regulated, but because of a belief that no cars would come upon that track. Had he known that cars were coming upon that track, it certainly would have been gross negligence for him to have stood on the track upon which they' coming, relying upon their being so controlled by the brakeman that they would not injure him. The evidence in the case does not an assumption that, if the cars had been braked, the plaintiff would have escaped injury. The pr,oximate cause of the injury was, in our opinion, the plaintiff's misunderstanding of the signals; Warned by the cries which were intended to prevent him from going upon the track, he misunderstood the warning, and, without stopping to look. made a mistaken choice of a place of refuge; relying upon his belief that, because the two cars between which he was crushed were half loaded, no more cars would be sent upon that track. He reversed the meaning of the signal, and thereby was led to leave a position of safety, and, place himself in danger. The defendant cannot reasonablybe held to a duty to have foreseen or guarded against an occurrence of this character. The misapprehension of signals must therefore be considered an intermediate cause, disconnected from any fault in the management of the speed of the cars, if such fault existed, aild in legal contemplation the proximate cause of the injury. Railway Co. v. Kellogg, 94 U. S. 469; Scheffer v. Railroad Co., 105 U. S.249. The injury therefore was the result of an accident for which the company was not responsible. The judgment of the circuit court is reversed, and the case remanded to that court, with directions to set aside the verdict, and to take further proceedings not inconsistent with our opinion passed down this day; and the plaintiff in error will recover its costs in this court.

McELROY v.

ASSUR. CO.

(CircuIt Court, D. Washington. N. D. August 5, 1898.)
No. 617.

NOTICE.

An..agent of one Insurance company who applles to the agent ot another compaJ;lY to take part of the insurance he has negotiated on a vessel, and who receives from suchot·her agent the polley Issued by bls company and delIvers It to the Insured, after attachIng thereto a sllp dIrectIng It to be returned to .hlm tor renewal, doe.s nqt thereby become agent ot the latter company,l!o as to make It chargeable with his knowledsre ot an exCess.ot Insurance above that allowed bYl;luch policy.
L

When all Insurance agent bas taken tor his company part ot the In8uran'de'J'legotlated by an agent for another company, the tact that he ; baalJmadea chuge Oil, his books agaInst for tb,1l premium

&Mlll-,;-]iSTOPPEL-ACCEP'l'ANCE OF BENEFITS.