Numerous errors are assigned; those which were pursued in argument will receive our consideration.
The court was requested to instruct the jury as follows: "The defendant concedes that the land upon which the extension of the spur-track was built was either owned or controlled by him, and that he allowed the use of it by the railroad company. Under these circumstances a duty to exercise care with reference to the condition of the premises devolved upon the defendant. If the defendant failed to exercise the care with reference to the condition of the premises which an ordinarily careful man would exercise under the circumstances, and if, without contributory negligence on the part of the plaintiff, the plaintiff suffered an injury because of such lack of care on the part of the defendant, your verdict should be for the plaintiff. If the defendant allowed the use of the premises in question for railroad purposes, it impliedly allowed such use of them as is ordinarily involved in the railroad operations incident to the use of the premises, and if the plaintiff, in assisting in the operations of a train, suffered an injury arising out of the negligence of the defendant and was himself free from contributory negligence, your verdict should be for the plaintiff."
These requests, when taken by themselves, are *Page 611 nothing more than a statement that it is the duty of a landowner or of one who has charge of a building, to be careful and diligent in keeping it safe for those who come there by his invitation, express or implied. This case presents no such situation. The railroad company was in control of the entire right of way, including the defendant's land, for railroad purposes. The only limitation upon its rights, so far as the defendant was concerned, was that it should not so use the defendant's property as to in any manner interfere with his business. This agreement constituted something more than a mere license to the railroad company. It was a liberty or privilege which the railroad company had in the land of the defendant. It gave to the company a right of way over the defendant's property for railroad purposes. This privilege was in the nature of an easement. 3 Words Phrases, 2305.
As a general rule, it is the duty of one who is the owner of a right of way over lands of another to keep it in repair, to protect and maintain it. Nichols v.Peck, 70 Conn. 439, 441, 39 A. 803; McCusker v.Spier, 72 Conn. 628, 629, 45 A. 1011; Jones v. Percival, 22 Mass. (5 Pick.) 485, 486.
After explaining the issues between the parties, the burden of proof, the duty of inspecting the premises, the evidence and claims of the parties, the judge, in substance, said: If the defendant licensed or permitted the railroad company to use that property, he incurred certain obligations whenever and so long as the railroad company was using it for their mutual benefit or convenience, or for the profit of Mr. Hall himself. While the railroad was employed in shifting or placing cars for Mr. Hall, Mr. Hall was under obligation to use reasonable care to see that the premises were in safe condition. If the use of the premises was for the profit of Mr. Hall alone, or for the benefit of Mr. Hall *Page 612 and the railroad company mutually, then it was Mr. Hall's duty to use reasonable care in regard to keeping the premises free from anything which might injure the employees of the railroad company. On the other hand, you will observe that in this agreement between Mr. Hall and the company the privilege was allowed to the railroad of using this track for general railroad purposes for other people. Now, if the railroad was engaged in placing cars for some other persons, from which Mr. Hall had no profit, or switching the cars of some other persons, in which Mr. Hall was not interested, then there was no obligation upon Mr. Hall to exercise any care whatever concerning the condition of that track or anything near it. If he had no interest he had no obligation in the matter. The judge also instructed the jury: "Speaking generally, where the privilege of the user exists for the common interest or mutual advantage of both parties, it will be held to be a case of invitation; but if it exists for the mere pleasure and benefit of the party exercising the privilege — that is, in this case, the railroad company and its employees — it will be held to be a case of license. . . . You are to determine whether or not it existed for the convenience, common interest or mutual advantage of both parties. A licensee, such as this plaintiff was, or the railroad company, "must take the premises as he finds them, and the owner is not, as to him, bound to use care and diligence to keep the premises safe; while he does owe such a duty to one using his premises upon invitation." The judge further instructed the jury as follows: "The owner of the premises is not at liberty, by some wilful act, to cause an additional danger to a licensee using the premises. The landowner must not himself, by what has been called `his own active negligence,' injure either the licensee or any other person." *Page 613
The substance of the averments of the plaintiff's complaint, in so far as they refer to the relations which existed between the plaintiff and the defendant, is that the plaintiff, when injured, was upon the defendant's premises by virtue of the permission which was given to the plaintiff's employer, the railroad company. Therefore it necessarily follows that the plaintiff's rights, as against the defendant, were in no way superior to the rights of the railroad company. It apparently was conceded that, when the accident occurred, the railroad company was engaged in certain switching operations for parties other than the defendant. In this connection it is of importance to notice that the only limitation which the written contract places upon the rights of the railroad company was that it must so use this way as not to interfere with the defendant's business. "Negligence involves the violation of a legal duty which one owes to another, in respect to care for the safety of the person or property of that other. 1 Thompson on Negligence, § 3. That duty may be assumed by contract, or arise from the circumstances or the relation of the parties. Common-law principles prescribe the usual measure of it, to wit, ordinary care under the circumstances." Sharkey v. Skilton,83 Conn. 503, 508, 77 A. 950.
The instructions upon this branch of the case permitted the plaintiff to recover if the jury found that the plaintiff was injured when the railroad company was using this spur-track for the mutual benefit of the defendant and the railroad company or the profit of Mr. Hall himself. Of this the plaintiff has no just grounds of complaint. In any aspect of the case, it is plain that the court did not err either in declining to charge as requested, or in charging as it did upon this branch of the case.
The plaintiff complained of certain instructions which *Page 614 related to the width and extent of the right of way which the railroad company was entitled to use. The judge was right when he charged the jury as follows: "Does the evidence indicate to your satisfaction, by a fair preponderance, that the defendant allowed or licensed the railroad company to use any land except that upon which the track was placed, or the land immediately adjacent to it, to some extent? And if to any extent, to what extent?" The width and extent of the right of way in question was a material inquiry for the consideration of the jury. The contract hereinbefore referred to was silent upon this subject. Generally speaking, the construction of a written instrument is a matter of law for the court, the meaning to be collected from the instrument itself. But where the meaning is to be had by extrinsic evidence, as in the present case, the construction is properly a question of fact for the jury.
The jury were charged: "Does the evidence, a fair preponderance of it, show that he was engaged in switching anything for Mr. Hall or anything for Mr. Dunham? Can you fairly draw an inference from the testimony which will support that allegation? On the other hand, I ought to say this: In any view that you take of the case, it may be that you will regard that allegation as not a substantial and material allegation which it is necessary for the plaintiff to prove in order to entitle him to recover." The last paragraph of these instructions is somewhat involved and obscure; but, notwithstanding this, the plaintiff's rights could not have been injuriously affected by them. These remarks, in effect, instructed the jury that the plaintiff might be entitled to recover though he had failed to establish one of the controverted allegations of his complaint.
There was no error in instructing the jury as follows: "Does the evidence indicate to your satisfaction, by *Page 615 a fair preponderance, that the defendant allowed or licensed the railroad company to use any land except that upon which the track was placed, or the land immediately adjacent to it, to some extent? And if to any extent, to what extent?" The court had fully and correctly instructed the jury as to the burden of the proof and the preponderance of the evidence, and the jury could not have been misled by these comments.
In referring to the testimony of the plaintiff, the trial court said: "If the accident occurred in that manner, why then, of course the plaintiff here is not telling the truth in his evidence wherein he attempts to give you an account of how the accident occurred." These comments by the trial judge were well within his discretion.
Complaint is made that the trial judge filled the jury with circumstantial details as to certain of the issues which were involved in the consideration of the case; that the court in its charge over-emphasized the difficulties which the plaintiff had to overcome before he was entitled to a verdict. A careful examination of the record discloses that these criticisms have no foundation. It appears that the issues between the parties were fairly and exhaustively explained to the jury. The charge was not argumentative or inconsistent. It did not necessarily invade the province of the jury. Undue prominence was not given to any question of law or of evidence by the trial court in its instructions. The charge as a whole was not unfair to the plaintiff.
The plaintiff in argument contends that there were certain errors committed by the trial court in relation to the admission of evidence. It is sufficient to say of these claims that no such errors were asserted in his reasons of appeal.
There is no error.
In this opinion the other judges concurred.