Allen v. Yazoo & Mississippi Valley Railroad Co.

• Decision Date: 17 April 1916
• Docket Number: 17529
• Citation: 71 So. 386,111 Miss. 267
• Parties: ALLEN v. YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY
• Court: Mississippi Supreme Court

71 So. 386

111 Miss. 267

ALLEN v. YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY

No. 17529

Supreme Court of Mississippi

April 17, 1916

APPEAL from the circuit court of Warren county, HON. H. C. MOUNGER Judge.

Suit by Ida Allen against the Yazoo & Mississippi Valley Railroad Company. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

N. B Feld and J. D. Thames, for appellant.

In Sweeny v. Old Colony etc., R. R. Co., 87 American Decisions page 648, the court said: "The general rule or principle applicable to this class of cases is, that an owner or occupant is bound to keep his premises in a safe and suitable condition for those who come upon and pass over them using due care if he has held out any invitation, allurement or inducement either express or implied, by which they have been let to enter thereon," and further, on the same page says:

"The gist of the liability consists in the fact that the person injured did not, merely for his own convenience and pleasure and from motives to which no act or sign of the owner or occupant contributed, but that he entered the premises because he was lead to believe that they were intended to be used by visitors or passengers and such use was not only acquiesced in by the owner or person in possession and control of the premises, but that it was in accordance with the intention and design with which the way or place was adopted and prepared or allowed to be so used," and further on the same page says: "The true distinction is this: A mere passive acquiescence by an owner or occupier in a certain use of his land by others involves no liability; but if he directly or by implication induces persons to enter on and pass over his premises, he thereby assumes an obligation that they are in a safe condition, suitable for use, and for a breach of this obligation he is liable in damages to a person injured thereby." On page 649, the court further says: "In the last named case, the distinction is clearly drawn between the liability of a person who holds out an inducement or invitation to others to enter on his premises by preparing a way or path by means of which they can gain access to his house or store, or pass into or over the land, and in a case where nothing is shown but a bare license or permission tacitly given to go upon or through an estate, and the responsibility of finding a safe and secure passage is thrown on the passenger and not on the owner." As to what constitutes an implied invitation, in Lepnick v. Gaddis, 72 Miss. 207, the court said: "However, this may be, the phrase implied invitation, in its real value and significance, as derived from its application in the adjudged cases, imports knowledge by the defendant of the probable use by the plaintiff of the defendant's property so situated and conditioned as to be open to and likely to be subjected to, such use: St. Louis I. M. and S. R. Y. Co. v. Dooley, 92 So. W., 791; Devoe v. New York, O. & W. Ry. Co., 43 Atlantic Reporter, 901.

We respectfully submit that the facts of this case bring it within the principles announced above; there was no mere passive acquiescence by appellee; on the contrary, appellee made the excavation, and built the steps, and allowed the public to use them for a period of fifteen years, and at one time repaired them, as was shown by the evidence. Appellee was therefore, under a duty to appellant at the time she fell from the steps and was injured, to have kept them in a reasonably safe condition, and in leaving the third step out for a period of a year before appellant was caused thereby to fall and be injured. Appellee was guilty of a negligent failure to perform this duty.

Mayes, Wells, May & Sanders, for appellee.

We submit two principles as settling the question against appellant: First, appellant was a licensee: Second, the appellee was guilty of no active negligence contributing to appellant's hurt.

The principle of law is too well settled to justify extensive citation of authorities, that one who uses the premises of another by mere sufferance, for purposes of his own, is a licensee. To permit one for his own convenience to use your premises does not amount to an invitation so to do.

The distinction between one present by invitation and one present on premises as a licensee, is very satisfactorily discussed in the case of Pomponio v. N.Y. etc. RR. Co., 50 Am. State Rep. 124.

In the case at bar, the appellant was on the appellee's premises for her own convenience, as she testified; she had no business there with the appellee but was using this short cut to Leofodt's store, as others frequently did. The steps did not connect with the highway, and led to nowhere except to the appellee's private business, where the public had no interest and was not invited to come. This being true, the appellant was a licensee. The appellee owed her the duty to refrain from using force or committing any active negligence to her hurt. The most that can be made of the appellant's case is that the appellee did not provide her a safe passage across its premises to be used by her for her private, personal convenience in which the appellee was not interested.

In the case of Sweeney v Old Colony, etc., R. R. Co., 87 Am. Dec. 648, relied on for appellant, the plaintiff was injured by the active negligence of the defendant. The facts in the case show that the plaintiff attempted to cross at a place which was frequently used as a crossing over the defendant's road, while in the act of crossing he was negligently injured by a moving car which was backed into him while he was in the act of crossing. A wholly different case from the one at bar, and the decision in this case is certainly to be measured and limited by the facts of the case.

The case of Lepinck v. Gaddis, 72, Miss. 207, presents a case where the injured party was clearly present by invitation on the premises which were rendered unsafe and dangerous by the acts of the owner. The road and way across it had been used by the public in transacting business with the defendant in that case. The defendant had invited the public to use the premises and was bound to see that the premises were made safe. That case, therefore, is not authority for the appellant's contention.

The other case of St. Louis, etc. Co. v. Dooley, 92 S.W. 791, is a case where the railroad company had built a fence across a dirt road that had for many years been used as a public highway. The railroad company in that case did not attempt to prevent the public's continued use of the way as a highway, but invited its continued use and constructed steps, or a stile, to be used as a part of link in the road. In order to travel along the road from one part to the other, intersected as it was by this stile, it was necessary for the public to use the style so placed by the railroad company.

In the case at bar, the steps were no part or link in any continuous highway. The highway ended before the steps were reached, and beyond the steps were the yards and tracks of the appellee where no one was invited to come; where the appellant had no business and where a sound public policy would discourage all persons from going because of the dangers attendant upon the use of the railroad as a footway.

It seems to us clear that the Dooley case is in no sense analogous to the present case. If the Dooley case could be construed to hold that the owner of premises is liable to a licensee for an omission to provide a safe place, then we submit that the Dooley case is not good law and ought not to be followed by this court.

The supreme court of the United States, in the case of Bennett v. L. & N. R. R. Co., 102 U.S. 57, quotes to approve this principle: "Invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is a mere pleasure to the benefit of the person using it." Under this rule, we submit that the appellant was a licensee and appellee owed her no duty except not to injure her by active negligence.

This court has passed on the question of the extent of the duty which the owner of land owes to a licensee whose entry thereon is for his own pleasure or convenience, and the rule thus declared by our court accords with the rule announced by the supreme court of the United States and the rule stated in the Pomponio case, supra. We refer to the cases of I. C. RR. Co. v. Mary Arnola, 78 Miss. 787; Batchelor v. Fortescue, 2 L. R. Q. B. D., 474; Housell v. Smyth, 97 E. C. L. R., 742; Redigan v. R. R. Co., 155 Mass. 144; S. C., 14 L. R. A. 276; Collis v. Selden, 3 L. R. C. P. Cas. 495; Gantrel v. Egerton, 2 L. R. C. P. Cas. 371.

We therefore submit that the appellant when she was injured was a licensee and her...