Sandstrom v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.

Ostrander, J.

(after stating the facts). The ruling in Gold v. Railway, supra, is based upon Jackson Bridge & Iron Co. v. Insurance Co., 122 Mich. 433 ( 81 *106 N. W. 265 ); Wolfe v. Stack, 153 Mich. 445 ( 116 N. W. 1010 ), and Canerdy v. Railway Co., 156 Mich. 211 ( 120 N. W. 582 ). See, also, Nelson v. Extract Co., 184 Mich. 111 ( 150 N. W. 317 ). The point that the assignment of error here is too general — not specific— is decided against appellee by the record. Clearly, it is specific.

It is admitted by plaintiff that his decedent was not invited upon the defendant’s premises. He disclaims any aid from the doctrine of the Turntable Cases, so called. Those cases, recognizing the rule that one whose entry is simply not opposed and prevented is not invited upon premises, found an invitation to children to enter premises in the attractive tiling erected or maintained thereon. Plaintiff’s contention rests upon three assumed facts: (1) That plaintiff’s decedent was a licensee; (2) a change made by the owner in premises which plaintiff’s decedent was licensed or permitted to use, creating a peril; (3) an injury growing out of the customary , use of the premises by the licensee and the peril actively created by the owner —a wilful act of injury.

I find no testimony tending to prove that children habitually played on the logs, or on the ground where they were deposited. There is testimony tending to prove that, two days before the occurrence here in question, some children were playing on the logs; but there is no testimony tending to prove that any officer or agent of defendant knew about it. This answers precisely a question which the court submitted to the jury, namely, whether the defendant “did actually consent that these children might occupy that particular place as a playground” — a question which the court made a vital one and should have answered favorably to defendant. There is no need, perhaps, to here comment upon the use by the court, in the part of the charge referred to, of the expressions “consented *107 thereto” and “consented to the use of that ground,” expressions which seem to be confusing. The testimony supports no idea, or theory, of consent by the defendant to any use by the public of its premises. At the most, defendant did not exclude the public, and, while its knowledge that the public was customarily making a certain use of a part of its premises might raise a duty not by its acts to make such customary use perilous, such an idea of its duty depends not at all upon any idea of its consent to such use.

As, at the best, acquiescence in a use of the premises —license to use them — must depend upon some known customary use, if we assume that plaintiff’s decedent was a licensee, no testimony tends to prove a license to use the roadbed of defendant’s tracks for any purpose. There is no testimony tending to prove that the depositing of logs along the track was a new use of the property, and none tending tó prove that the depositing of the logs created a peril affecting any cus- - tomary use of any part of the premises by any of the public.

It follows that the court, upon the evidence, ought to have determined the case favorably to defendant, and that the judgment must be reversed, with costs to appellant.

Kuhn, C. J., and Stone, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.