CASES

IN THE

SUPREME JUDICIAL COURT

OF

MASSACHUSETTS.

REDIGAN V. BOSTON AND MAINE RAILROAD.

[155 MASSACHUSETTS, 44.]

RAILROAD CORPORATION MAKING NO ATTEMPT TO PREVENT TRAVEL ACROSS its station-grounds and platform, as a short cut between public streets, does not thereby invite the use of such station and platform for the pur. poses of such travel.

A BARE LICENSEE MUST TAKE PREMISES AS HE FINDS THEM, and has no cause of action if injured on account of dangers there existing. The owner does not owe him any duty to care for him, or to see that he does not go to a dangerous place.

RAILROAD CORPORATION LEAVING UNGUARDED AN OPENING MADE BY RAISING A TRAP-DOOR, forming part of a platform at one of its stations, is not answerable to one injured by falling into such opening while crossing the station and platform without the invitation of the corpora tion, in order to make a short cut between public streets, though he and other persons had been in the habit of so crossing without objection. This is because he is a mere licensee, to whom the corporation owes no duty to warn him of danger resulting from the ordinary use by it of its premises.

T. G. Kent and G. T. Dewey, for the plaintiff.

F. P. Goulding, for the defendant.

BARKER, J. The railroad station at which the accident happened is so situated that its grounds upon the west and south are contiguous to public streets, Prescott Street on the west, and Lincoln Square on the south. The grounds are uninclosed, and their surface is of substantially the same level and appearance with the streets, so that no line of demarcation is apparent. The station building is surrounded by a platform. elevated one step above the ground, and the platform continues southerly along the railroad track to Lincoln Square. In

the other direction, the platform is distant at its northwest corner about twenty-five feet from the easterly line of the other street. The surface of the station-grounds between the streets and the platform was in a suitable condition for public travel, and was very much used by teams and foot-passengers in going to and from the station, and in traveling across the stationgrounds from one street to the other. There was no sidewalk or other defined foot-path on the east side of Prescott Street next the station-grounds, but there was a brick sidewalk on the west side of Prescott Street, extending to Lincoln Square. There was a path trodden by foot-passengers extending diagonally across Prescott Street and the northerly portion of the open station-grounds, towards the northwest corner of the platform. The route by this path, and the platform on the west and south sides of the station building, and thence southerly by the platform next the tracks between the northerly part of Prescott Street and the Square at the end of the platform, was a hundred or more feet shorter than that by the public streets. A large number of persons not passengers or having business at the station went over the platform daily, in passing by this short cut from one street to the other. There was no evidence whether the defendant made any attempt to prevent this travel, and none that it permitted it except that it existed in fact. There was also evidence that many people went over the platform on the east side of the station, and some along or between the railroad tracks, when going to Lincoln Square from points northerly of the station.

The plaintiff for seven weeks previous to the accident had walked over the platform twice daily each way in going between her home and the place where she worked. On the night of the accident, she was walking home from the shop by her usual route, leaving the shop at six o'clock with two other working girls. It was very dark. They walked on the sidewalk on the west side of Prescott Street until they came to the foot-path; then walked over the path across Prescott Street and the station-grounds to the north end of the platform, and then a short distance along the platform on the west side of the station, when she fell into a hole or opening which she did not before know of and did not see, and so was injured. The opening into which she fell was made by the raising of a trap-door, which formed part of the platform, and which opened upon stone steps leading to the cellar of the station building. The trap-door had been open for an hour or more

before the accident, and the opening was not guarded by any barrier or light, and there was no person in charge of it, nor other warning. The plaintiff knew that this was a railroad passenger-station, had seen teams drive up to the platform to get passengers and trunks, and had been to this and other passenger-stations constructed in a similar manner with platforms on the outside. The question is, whether, upon the facts shown, the plaintiff was entitled to go to the jury, a verdict for the defendant having been ordered in the superior court.

It cannot be said, as matter of law, that the plaintiff was a trespasser. She knew that the place where she was traveling was not a public way, but the platform of a railroad passenger-station; she was not a passenger of the railroad, and had no business to do at the station, but was merely using the station-grounds and platform as a short cut to facilitate her passage home. Whether her act was or was not a trespass depends upon the attitude of the defendant toward her, and those who were accustomed to use the station in a similar manner. It may properly be inferred that the defendant knew of, and passively allowed, the plaintiff and the public to pass at their pleasure across the station-grounds and the platforms, from one street to the other. On the other hand, it cannot be said that any invitation or inducement was extended by the defendant, to the plaintiff or to the public, to use the station-grounds and platforms as a short cut in traveling from street to street, or for any other purpose than that for which they were designed and adapted in connection with the railroad. It was apparent that the place was a railway passenger-station, and not a way for foot-travel. No arrange ment or fitting of the grounds or platform is shown which would convey to any one the idea that the platform was a part of Prescott Street or of Lincoln Square, or of any public way, or that those in charge of it invited its use for other than railroad purposes. The platform was not contiguous to Prescott Street; it led from Lincoln Square to the station building, and did not connect the two streets. It was obviously a part of the railroad station, and for the use of railroad passengers. The use for which it was apparently designed required the land to be left open and easily accessible from the public streets. Besides this, the plaintiff knew that it was a passenger-station and was not in fact induced to believe that she was walking over a public way. The fact that the defendant made no attempt to prevent travel across the station-grounds

and platform, as a short cut between the public streets, was not an invitation to use them for that purpose: Galligan v. Metacomet Mfg. Co., 143 Mass. 527; Reardon v. Thompson, 149 Mass. 267.

It follows that the plaintiff's rights are to be determined upon the theory that she was neither a trespasser nor a person induced or invited by the defendant to enter its premises, but a licensee merely, knowingly using the defendant's land and structures for a purpose solely in her own interest, and for which she knew they were not intended, and entering upon them without invitation and without right, by her voluntary act, and with the bare sufferance of the owner.

The case is not one of a concealed peril, or of a trap designedly laid. The exceptions do not show that the door was not easily distinguishable from the platform of which it formed a part, and the use for which it was designed must have been apparent upon inspection.

The general rule is, that a bare licensee has no cause of action on account of dangers existing in the place he is permitted to enter, but goes there at his own risk, and must take the premises as he finds them: Reardon v. Thompson, 149 Mass. 267; Parker v. Portland Publishing Co., 69 Me. 173; 31 Am. Rep. 262. No duty is cast upon the owner to take care of the licensee, or to see that he does not go to a dangerous place, but he must take his permission with its concomitant conditions and perils, and cannot recover for injuries caused by obstructions or pitfalls: Hounsell v. Smyth, 7 Com. B., N. S., 731; Batchelor v. Fortescue, 11 Q. B. Div. 474; Sweeny v. Old Colony etc. R. R. Co., 10 Allen, 368, 372; 87 Am. Dec. 644. "An open hole, which is not concealed otherwise than by the darkness of night, is a danger which a licensee must avoid at his peril": Holmes, J., in Reardon v. Thompson, 149 Mass. 267, 268; Sullivan v. Waters, 14 Ir. C. L. 460, 475.

The plaintiff cannot complain that the defendant, in lawfully using its station and appliances as they were apparently designed and adapted to be used, so changed their condition. without her knowledge as to make the place dangerous to her when she attempted to use it in a manner inconsistent with the use which the owner chose to make of it. The defendant was under no obligation to her to light the place, or put up a barrier, or to give warning that the condition of the door made it dangerous for her to attempt to pass. The opening was not a trap, but an ordinary and usual means of access to

a cellar, and so far as the plaintiff was concerned, the defendant owed her no duty to keep it closed rather than open: Metcalfe v. Cunard Steamship Co., 147 Mass. 66; Heinlein v. Boston etc. R. R. Co., 147 Mass. 136; 9 Am. St. Rep. 676. The fact that the jury viewed the premises makes no difference in the power of the court to deal with the case upon the evidence presented in court, or with our decision of the question whether the justice presiding at the trial was right in directing a verdict for the defendant.

Exceptions overruled.

REAL PROPERTY OWNER'S LIABILITY TO PERSONS COMING ON HIS PREMISES. — This subject is fully discussed in Sweeny v. Old Colony etc. R. R. Co., 10 Allen, 368; 87 Am. Dec. 644; Elliott v. Pray, 10 Allen, 378; 87 Am. Dec. 653; and Zoebisch v. Tarbell, 10 Allen, 385; 87 Am. Dec. 660, and extended note. One going on the premises of another without invitation, and with the mere acquiescence and sufferance of the owner, is a bare licensee, and cannot recover for an injury sustained by reason of a defeo. in the premises: Cusick v. Adams, 115 N. Y. 55; 12 Am. St. Rep. 772; Galveston Oil Co. v. Morton, 70 Tex. 400; 8 Am. St. Rep. 611. On the other hand, where the permissive use of the property has been such as tends to produce a confident belief that the use will not be objected to, and others are thus led to act on that belief, the owner may be held liable for an injury which would otherwise have affected him with no responsibility: Houston etc. R'y Co. v. Boozer, 70 Tex. 530; 8 Am. St. Rep. 615, —a case in which a person using a private path over a railway track was injured.

In the case of Stevens v. Nichols, 155 Mass. 472, the doctrine of the principal case was reasserted. The defendants were lessees and occupants of premises on Atlantic Avenue, in Boston, from which avenue an open way extended into such premises, and to other premises beyond them; this way had all the appearances of a public way or street, being paved and sidewalked, except that a granite curbing extended into the way at a point opposite the rear of defendants' premises, and projected some six or seven inches above the paving. On a day when the way was so covered with snow that this curbing could not be seen, plaintiff drove into the way, be lieving it to be a public street, and was injured, through his sleigh coming into contact with the curbing. The court determined that the plaintiff was, at most, a mere licensee, to whom the defendants could not be held answerable, saying: "It does not appear that the plaintiff had any right in the way, unless he had it as one of the public. There is no allegation or statement that the plaintiff had ever used the way before, or that he knew the way was paved, or noticed whether there was a sign or not. Indeed, if he was then using the way for the first time, the fair inference would be, from the statement of the condition of the snow, that the fact that the way was paved was unknown to him until after the accident, and did not operate as an inducement to enter the way. The declaration contained no allegation as to any use by the public of the way, and the statement, in the opening of counsel, that the public made use of that way, was qualified by the words, 'that is, as much as they had any occasion to pass down there with teams or on foot.' It is difficult to see how vehicles of any description could, when the paving was sufficiently visible to act as an inducement, go over that