Mitchell, J. Actionable negligence is the failure to discharge a legal duty to the person injured. If there is no duty, there is no negligence. Even if a defendant owes a duty to some one else, but does not owe it to the person injured, no action will lie. The duty must be due to the person injured. These principles are elementary, and are equally applicable, whether the duty is imposed by positive statute or is founded on general common-law principles.[[132]]
LARY v. CLEVELAND R. CO.
Supreme Court, Indiana, November Term, 1881.
Reported in 78 Indiana Reports, 323.
Lary sued the railroad company for damage alleged to have been sustained by him, through the negligent failure of the company to repair a building standing on its grounds, and formerly used by it as a freight house. Answer, a general denial. Upon the trial, the plaintiff introduced his evidence; the defendant demurred to it, and the plaintiff joined in demurrer. The Court sustained the demurrer, and the plaintiff excepted.
The facts which the plaintiff’s evidence tended to prove are substantially as follows:—
The railroad company owned half an acre of land between the railroad track and a highway. On this land was a building erected several years before for a freight house. It was no longer used as the general freight house, though still used for storing the company’s wood. A part of the roof of the building was off, and had been so for some months. The plaintiff, who was twenty years of age, was in the habit of passing the building almost daily, and had noticed that part of the roof was off. In a rain storm, the plaintiff went under the platform of the old freight house, and played there with other young people. A piece of the roof was torn off by the wind. The plaintiff, being frightened at the noise, ran out, saw the piece of the roof in the air, and ran towards the highway; but before or as he reached the edge of it, this fragment of the roof fell upon him.[[133]]
Morris, C. [After stating the case.] Upon the facts thus stated, can the appellant maintain this action?
There is no testimony tending to show that the appellant was at the freight house by the invitation of the appellee, nor that he was there for the purpose of transacting any business with the appellee. The appellant intruded upon the premises of the appellee, and is not, therefore, entitled to that protection which one, expressly or by implication, invited into the house or place of business of another, is entitled to. The appellant was a trespasser, and as such he entered upon the appellee’s premises, taking the risks of all the mere omissions of the appellee as to the condition of the grounds and buildings thus invaded without leave. We do not wish to be understood as holding or implying that if, on the part of the appellee, there had been any act done implying a willingness to inflict the injury upon the appellant, it would not be liable. But we think there is nothing in the evidence from which such an inference can be reasonably drawn. The building could be seen by all; its condition was open to the inspection of every one; it had been abandoned as a place for the transaction of public business; it was in a state of palpable and visible decay, and no one was authorized, impliedly or otherwise, to go into or under it. Under such circumstances, the law says to him who intrudes into such a place, that he must proceed at his own risk.
In the case of The Pittsburgh, &c. R. W. Co. v. Bingham, 29 Ohio St. 364, the question was: “Is a railroad company bound to exercise ordinary care and skill in the erection, structure, or maintenance of its station house or houses, as to persons who enter or are at the same, not on any business with the company or its agents, nor on any business connected with the operation of its road; but are there without objection by the company, and therefore by its mere sufferance or permission?” The Court answered this question in the negative.
In the case of Hounsell v. Smyth, 7 C. B. N. S. 731, the plaintiff fell into a quarry, left open and unguarded on the unenclosed lands of the defendant, over which the public were permitted to travel; it was held that the owner was under no legal obligation to fence or guard the excavation unless it was so near the public road as to render travel thereon dangerous. That the person so travelling over such waste lands must take the permission with its concomitant conditions, and, it may be, perils. Hardcastle v. The South Yorkshire R. W. Co., 4 H. & N. 67; Sweeny v. Old Colony, &c. R. R. Co., 10 Allen, 368; Knight v. Abert, 6 Barr, 472.
After reviewing the above and other cases, Judge Boynton, in the case of The Pittsburgh, &c. R. W. Co. v. Bingham, supra, says:—