Mann v. Des Moines Railway Co.

Miller, J.

(specially concurring) — I agree with the result reached by the majority opinion herein and the decisions made on those propositions which appear to be essential to a determination of the case, but I doubt the advisability of including a substantial portion of the discussion set forth in such opinion. In division I, quite a number of authorities are cited and discussed for the purpose of determining the duty owed to a trespasser. The opinion then states, “The record here clearly establishes that the appellee was not a trespasser.” While the discussion relative to whether the appellee was a trespasser appears proper, a discussion of the duties owed to a trespasser is dictum and unnecessary to a decision of the case. In division II, the opinion discusses the duties owed to a bare licensee and states, “The record clearly establishes that the appellee was not a bare licensee.” Such holding renders a large portion of division II dicta and unnecessary to a decision of the case. In division

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III, it is held that appellee ivas a licensee by implied invitation. Considerable discussion is had with regard to the duties owed such a licensee. I think there is a distinction in such cases regarding the duties owed by a railroad company to such a licensee. This distinction arises because of the type of property comprising a railroad right of way and the use made of it. Much that can be and has been said regarding duties of railroad employees to give warning and maintain a lookout for such licensees upon a railroad right of way is not applicable to the. employees of other types of landowners. Accordingly, I think much of the discussion in division III is dictum and unnecessary to a decision herein.