City of Greenville v. Pitts , 102 Tex. 1 ( 1908 )

The defendant in error was a policeman in Greenville, and suspecting that persons were gambling in a room in the upper story of a building in the city, he, on several occasions at night, ascended to the roof of an adjoining one-story building in order that he might see into the suspected place through its windows. After he had done this once or twice and had seen gambling going on, he stated his action to the mayor and expressed the opinion that it would be best, before making arrests, to continue his watch, in order to identify a greater number of the persons thus violating the law, to which the mayor assented. He again went upon the roof at night, and in moving about he came in contact with and was burned by an electric wire which belonged to the city and was used in connection with its electric lighting plant in supplying light. This wire extended north and south with and near to a fire-wall between the building on which plaintiff was and an adjoining one, and ran down the partition wall between the two at one end. The insulating material upon it had become defective to such an extent as to render contact with it dangerous. The city operated its plant at night, its wires not being charged with electricity in the day time, except on a few rare occasions. No way had been provided by the owner of the building upon which plaintiff went for getting upon it, and plaintiff reached its roof by climbing upon a fence in its rear and then passing over the top of a low adjoining room. Access to the roof could also be had from the gallery of a near-by hotel across the walls and roof of an intervening house. It was shown that at times, during parades and like occasions, people had gone upon these roofs in the day time, but not at night. Plaintiff had no invitation or express permission from the owner of the building to go upon it.

We do not doubt that it was the duty of the city to the owners of the buildings, their servants, employes, and anyone else who may have had a legal right to go upon the roofs, to exercise proper care in maintaining the wire upon the partition wall to protect them against injury from contact with the wire. Giraudi v. Electric Imp. Co., 28 L.R.A. 596; Ennis v. Gray, 87 Hun (N.Y.), 355; Clements v. Louisiana Electric Light Co., 16 L.R. A., 43; Illingsworth v. Boston Electric L. Co., 25 L.R.A., 552. But it owed no such duty to trespassers or bare licensees. Hector v. Boston Electric L. Co., 25 L.R.A., 554; 1 Thompson on Neg., secs. 946, 947, and cases cited.

Plaintiff was invested with none of the legal rights which pertained to the ownership of the building or an interest therein. He went upon it for purposes of his own and not in the interest of the owner. If he was not a trespasser, he certainly was no more than a licensee under an implied license. If he be regarded as such a licensee, this would not clothe him with any legal right in the use of the building. It would merely relieve him of any imputation of being an unauthorized trespasser. Though his act be regarded as lawful, or even praise-worthy, he nevertheless was using the premises of another for purposes of his own, without any legal right in himself which entitled him to object to the condition in which the owners maintained them.

The city, it appears, maintained its wire partly upon the wall of buildings belonging to others and partly in the space above such wall. This was the affair of the city and the owners of the property. We must assume that the wire was there lawfully. As to the plaintiff, having no right with respect to such wall and such space, they are to be regarded as the premises, not only of the owner of the lot and the buildings, but of the city. Neither was under legal duty to keep them safe for the plaintiff. If the roof had fallen in with plaintiff, would anyone contend that the owner would be liable to him? In what does the attitude of the city differ? It was not keeping its wire in a public place, where all had the right to go, or might be expected to go, but on private premises, which we must presume it had acquired some right or permission so to use, and was under no duty, in keeping its property there, to one like plaintiff, who went there without invitation or inducement from anyone interested in such premises. (Dobbins v. Missouri, K. T. Railway Co., 91 Tex. 62.) Plaintiff's official character does not affect this question. The city, as owner of its light plant, occupied the position, so far as this case is concerned, of any other proprietor, and we know of no principle which makes it the duty of a proprietor to keep his premises safe for the use of such officers when they have occasions to go thereon in pursuit of violators of the law. Nor did the conversation with the mayor add anything to plaintiff's rights. The mayor did not instruct or invite the plaintiff to go upon the house, but merely agreed with him in the plan which he had himself conceived. Besides, the mayor was not the representative of the city as owner of the light plant; and, lastly, such an assent as this transaction might imply, if given by an owner himself, would be no more than a mere permission or license, authorizing the licensee to enter the premises in their existing condition and carrying no duty to alter them for his use.

We conclude that defendant in error has no right of action against the city and the judgment of the District Court and of the Court of Civil Appeals will be reversed and judgment will be entered for plaintiff in error.

Reversed and rendered.