CHICAGO, M. & ST. P. RY. CO. v. HAUBER, 162 F. 668

BAKER, Circuit Judge (after stating the facts as above).

Though defendant’s foreman, who directed the lumber to be piled on the platform, testified that he first examined the platform carefully and “found the timbers all sound and solid on the outside,” and though the carpenter who removed the wreck declared that the timbers, while “rotten at the heart, like a shell,” “appeared to be all right on the outside,” the jury had the right to accept the testimony of plaintiff’s witnesses that “the beams were rotten,” “I passed the platform many times, it was pretty well gone up, the posts were pretty well gone up, the stringers were all rotten,” and therefrom to conclude that the platform was liable to collapse at any moment and that a proper inspection could not have failed to discover the dangerous condition.' By its motion for a directed verdict, and also by its requested instruction, defendant insisted that plaintiff was a trespasser, or at most a bare licensee, and therefore that defendant owed him no duty except to refrain from injuring him wantonly.

The platform, 10 feet wide and 40 feet long, was wholly on the private property of defendant. Its use for receiving or shipping freight had been discontinued for more than two years prior to the accident. This fact was known to plaintiff and his grandfather. Along the side away from the main tracks was a spur track, adjoining which was a public street, Austin avenue. Plaintiff’s grandfather had engaged from defendant a car in which to ship his household goods.

Defendant placed a box car on the spur track beside the platform and notified the grandfather that it was ready for his use. 'There is no evidence that defendant notified him, or that he otherwise knew, of the dangerous condition of the platform. Pie employed several men to help in moving his goods and loading them into the car. The doors on each side of the car were open. “The furniture was being loaded from the Austin avenue side of the car.

Some they put out on the other side there to get a chance to get in the car.” Plaintiff was directed by his grandfather to keep watch over the goods while the men went back and forth. As the boy was seated on the edge of the platform near some lumber that had been piled thereon by defendant, the platform gave way. Under the foregoing circumstances (covered by the testimony which is most favorable to plaintiff, and which we must assume the jury accepted), plaintiff was not a trespasser nor a bare licensee. As a helper of his grandfather, he had the same right on defendant’s premises that the grandfather had.

And the latter, as a shipper, had the right to be on the defendant’s premises and to do thereon whatever was necessary or proper in loading the car. And defendant, by placing the car beside the platform for the purpose of being loaded, without giving any notice of its condition, may justly be held to have invited the use’ of the platform. We find that the trial judge correctly apprehended the scope of the evidence and committed no error in overruling the motion for a directed verdict or in giving or refusing to give instructions. The judgment is affirmed.