Alabama Great Southern R. Co. v. Godfrey

• Decision Date: 13 February 1908
• Citation: 47 So. 185,156 Ala. 202
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. GODFREY.
• Court: Alabama Supreme Court

47 So. 185

156 Ala. 202

ALABAMA GREAT SOUTHERN R. CO. v. GODFREY.

Supreme Court of Alabama

February 13, 1908

Rehearing Denied July 3, 1908.

Appeal from Circuit Court, Sumter County; S. H. Sprott, Judge.

Action by Ernest B. Godfrey against the Alabama Great Southern Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

A. G. &amp E. D. Smith, for appellant.

Bowman Harsh & Beddow, for appellee.

HARALSON J.

The trial in the court below was had upon the first and fourth counts of the complaint as amended, and the case as stated by these counts was substantially as follows:

Plaintiff had been carried as a passenger on one of defendant's trains to Epes, Ala., where he alighted in the nighttime, and while passing from the depot along a much-traveled pathway leading therefrom, and while near to the depot, he fell from said pathway into a ditch and was thereby seriously injured that said pathway where plaintiff fell, was on defendant's premises and was habitually used, with defendant's knowledge and acquiescence, by defendant's passengers, in leaving its depot or trains at said Epes, at and before the time of plaintiff's alleged injury, by the invitation of the defendant. The fourth count contains the additional averment that the pathway led to a hotel, near by the depot, to which plaintiff was going. The negligence averred in the first count is as follows: "And defendant negligently caused or allowed said pathway or road to be or remain unsafe for passengers using the same as aforesaid in this, that the same was not properly or sufficiently lighted or otherwise properly and sufficiently safeguarded." The negligence as alleged in the fourth count was, that the defendant with knowledge of the use of the pathway as aforesaid, and with knowledge of its danger, "negligently allowed plaintiff to pass along said pathway or road over said ditch, gulley or viaduct, when the same was not properly lighted or otherwise safeguarded, without proper warning or notice of the danger thereof." Defendant filed a motion to strike these portions of the complaint which averred in substance the habitual use of the pathway by defendant's passengers, in leaving the depot, with defendant's acquiescence. The motion was overruled and this ruling assigned as error.

The same grounds of demurrer were interposed to each of these counts, and were in substance, that each of said counts showed that the plaintiff was a trespasser, or a mere licensee, upon the defendant's right of way; that no duty was shown to rest on the defendant to light or safeguard the place where the plaintiff fell, and that said place was not shown to have been on the depot premises of the defendant and that there was no averment of willful or wanton injury. The overruling of these demurrers by the court is also assigned as error.

It is insisted, in argument by the appellant, that the plaintiff was a trespasser or a mere licensee under the facts stated in the first and fourth counts, on which the case was tried. In support of this contention, as well as in support of the motion to strike portions of these counts, appellant cites the case of M. & C. R. R. Co. v. Womack, 84 Ala. 149, 4 So. 618, and other cases of a similar nature. The opinion in that case states: "He was clearly a trespasser upon the right of way of the defendant. Any person who enters and walks at places where the public have no right, unless by the invitation or license of the company, is a trespasser, and assumes the peril of the position in which he has voluntarily placed himself." (Italics ours.) The doctrine laid down in the above case, that the owner owes no duty to a trespasser to make his premises safe, and that ordinarily the mere acquiescence in the use of the right of way by a railroad company does not amount to permission, is well settled by numerous decisions of this court; but they have no application to the case stated in the complaint here in question, which specifically avers that this usage was by "invitation of the defendant." Different rules apply in cases where the parties injured are present on the premises by invitation or license of the owner, express or implied. Montgomery & Eufaula R. R. Co. v. Thompson, 77 Ala. 456, 54 Am. Rep. 72, and other cases hereinafter cited.

A fair construction of the amended complaint makes a case of a passenger leaving a train and depot by a route which he, as well as passengers in general, was invited to use by the railroad company, which route was negligently left unsafe and unguarded, by reason of which he was injured. It follows that, so far as the pleading discloses, he was not a trespasser or licensee, and that there was no error in overruling the demurrers. As to the motion to strike, it was at most directed at mere surplusage, the matter thus attacked being substantially repeated elsewhere in the amended counts in connection with the averment, that such habitual usage of the dangerous pathway by defendant's passengers was not only with its acquiescence, but by its invitation; and without proof of such invitation, under the averments of the complaint the plaintiff would clearly not be entitled to recover. Hence if there was any error in overruling the motion to strike, it was error without injury.

As the second count was charged out of the case and the third count went out on demurrer sustained, their consideration is not necessary here. As stated, the case was tried on the first and fourth counts.

The defendant pleaded the general issue and filed special pleas setting up contributory negligence.

The facts as shown without conflict in this case were substantially as follows: The plaintiff was a passenger on defendant's train from Birmingham to Epes, where he arrived on a very dark and rainy night. The train stopped at the depot, plaintiff left the train, and went into the depot to leave a satchel, expecting to spend the night in McGee's Hotel at Epes, where most travelers usually stopped. There was another hotel close to the depot, but few traveling men went there. McGee's Hotel was situated something more than 235 yards northward from the depot, near the railroad on the east side. Plaintiff had stopped at McGee's Hotel once before, when he came in a buggy and went to the hotel by the dirt road. Plaintiff had never gone up the railroad to the hotel, and up to the time of the injury did not know of the conditions existing on that way. The dirt road, of which plaintiff had knowledge, crossed the railroad near the depot on the south side and ran around northward in front of the stores at Epes and over a bridge with banisters spanning a waterway up to McGee's Hotel. This same waterway also passed under the railroad through an uncovered culvert, about 18 feet deep and cut through the rock, at a point on the railroad 235 yards north from the depot. When plaintiff went into the depot to put up his satchel, one Sims, acting as defendant's depot agent, said to him that the hotel man was there with a light and that if he would hurry he could catch up with him. Plaintiff immediately started out in the darkness to follow the man with the light which he saw going up the track toward the hotel; that as plaintiff left the depot a man, shown to have been defendant's night operator, hollowed to him, "Look out for the hole up there." Plaintiff kept on up the track, and about the time the man with the light turned up the embankment toward the hotel, plaintiff fell through into the culvert and was very seriously injured; one leg had to be amputated and the other was stiffened.

It was further shown that near the hotel there were some steps leading from a path from the hotel down to the railroad track which was, at that point, in a shallow cut; that defendant's passengers in going to and from the hotel and the depot usually, and had for a number of years, used a well-beaten path up the main line of defendant's railroad track from the depot and across the culvert and up these steps to the hotel, especially when the roads were muddy, being the same route pursued by the man with the light. It was not shown whether this custom was confined to daytime only, or extended to night and day both. The railroad company had never objected to this use of its track, though it had been so used for a number of years. The evidence did not show who put up the steps from the cut to the

path leading to the hotel, but it appeared that they had been removed several years before by the section foreman and the railroad company's supervisor had them put back; that the supervisor's duty was to keep up the railroad tracks and see that they were in good condition. It was 50 yards further from depot to hotel by the dirt road than by way of the railroad track. There was no evidence as to the depot agent's scope of duty. The railroad track over the culvert was not floored or covered, and no light or other warning placed there. There was some evidence tending to show that after the injury plaintiff said he had no one to blame but himself, but this he denied.

The plaintiff stated on cross-examination that defendant had never expressly invited, or given him permission to walk on its track or to use its track as a public highway.

The foregoing being the facts in evidence, the first inquiry arising is, was there any evidence from which it might reasonably be inferred that the plaintiff was expressly or impliedly invited by the defendant to use its railroad track as he was using it at the time he fell to his hurt? The plaintiff having testified that he was not expressly invited or permitted by the defendant to use the way he pursued, and the evidence, for that matter, failing to disclose any express invitation, the question is narrowed down to whether under the...