Arbogast v. Terminal R. R. Ass'n of St. Louis, 53987
| Decision Date | 09 March 1970 |
| Docket Number | No. 1,No. 53987,53987,1 |
| Citation | 452 S.W.2d 81 |
| Parties | Linda Joan ARBOGAST, a Minor, by Alan O. Arbogast, Her Natural Father and Next Friend, and Alan O. Arbogast, Individually, Plaintiffs-Appellants, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, Defendant-Respondent |
| Court | Missouri Supreme Court |
Edwin Rader, Paul H. Schramm, Clayton, for plaintiffs-appellants.
Robert C. Ely, St. Louis, for defendant-respondent.
This is an action for $40,000 for personal injuries to plaintiff Linda Joan Arbogast, a child, in one count, and for $2,500 damages for medical and hospital expenses incurred by the father, plaintiff Alan O. Arbogast, in the second count. The trial court sustained defendant's motion for a directed verdict at the close of plaintiffs' case. Plaintiffs have appealed.
Plaintiff Linda J. Arbogast, a child almost twelve years old, was injured in a fall from a trestle of defendant Terminal Railroad Association of St. Louis. Linda was visiting her aunt in Maplewood, Missouri, at the time of her injury. The evidence presented revealed that on the evening of the 14th of June (the day before plaintiff fell) Linda, her cousin Julie Blanton, and some other children living in the neighborhood were playing in a parking lot close to the Blanton home. All of the children went up a hill from the parking lot to a sign next to the railroad tracks. A train came along and stopped. A trainman got off the train and after going on an errand to a nearby store came back and talked to the children and asked them if they would like to get on the train. The trainman after showing the children the caboose took them for a ride up the tracks and on returning to the place where the children got on, stopped and let them off. The trainman, who was the engineer on the train, told the children that if they wanted another ride on the train to walk up and wave your hands over your head and I will stop the train and pick you up.
On the evening of the following day, June 15th, the group of children, including plaintiff Linda Arbogast, again assembled on the parking lot. They played there a short time and then went up to the railroad tracks by the sign and went up the tracks a ways. They traveled over a trestle across Manchester Road and another trestle over a creek. After playing a while and watching the boys throw some metal disks the group started back. As plaintiff Linda Arbogast and the others started back to the place where they entered the railroad property, Julie Blanton thought she heard a train coming and they started running across the trestle over the creek bed. One of the boys stopped, plaintiff didn't stop in time and lost her balance and fell over the side of the trestle to the ground below. This trestle was estimated by one witness to be one hundred feet and by another witness about fifty yards from the trestle over Manchester Road, which was near the sign where the children came up to the railroad property. There was a stipulation of fact that the trainman who took plaintiff and other children for a ride on the train and who invited them back for another ride was an employee of the defendant railroad, and the trestle where plaintiff fell and tracks mentioned in evidence were owned by defendant railroad. On these detailed circumstances plaintiffs contend that a case of liability was made and the court erred in directing a verdict for defendant at close of plaintiffs' case.
In general, plaintiffs contend that defendant acting through its servant, the trainman, invited, allured and enticed plaintiff, a twelve year old child, on to its property with heavy rolling stock and high unguarded trestles spanning deep ravines, knowing the same to constitute an extremely hazardous condition, was actively negligent in causing injury to the plaintiff child. Plaintiffs also argue that the employee or servant of the defendant in inviting plaintiff child upon an extremely hazardous area and further alluring and enticing plaintiff child with the promise of future train rides, knowing the propensities of children as regards their curiosity and exploring habits, created a duty to care for the safety of the plaintiff while on the premises of defendant. With these broad general statements as a place of beginning and since the court directed a verdict at the close of plaintiffs' evidence, plaintiff may urge any and all possible theories of liability, and, of course, if any one of them is valid the court erred in not submitting the case to the jury.
While plaintiffs do not carefully delineate their theory of liability it appears that they recognize that at best, the plaintiff child was a licensee under the classification of persons entering on land of another as defined in Richey v. Kemper, Mo., 392 S.W.2d 266, 268. Plaintiffs concede that in Missouri for many years the general rule has been that a licensee takes premises as he finds them, Glaser v. Rothschild, 221 Mo. 180, 184, 185, 120 S.W. 1, 22 L.R.A.,N.S. 1045, or, to put it another way, a landowner will incur no liability so long as he is inactive and warns the licensee of known ultrahazardous conditions and dangerous substances. Anderson v. Cinnamon, 365 Mo. 304, 282 S.W.2d 445, 448, 55 A.L.R.2d 516; 33 Mo.Law Review 93, 94. Plaintiffs, however, apparently recognizing that the trestle does not constitute an ultrahazardous condition, seek to invoke liability because of the landowner's active negligence. Plaintiffs argue that defendant's employee by inviting plaintiff child to come on the premises to take a train ride when the premises included a hazardous condition (high unguarded trestle) constituted active negligence. This contention cannot be accepted, as active negligence as defined in landowner cases in Missouri is negligence occurring in connection with activities conducted on the premises while the licensee is present and his presence is known or should be known to the licensor. Passive negligence onthe other hand as applied in these type of cases in Missouri is negligence which arises from permitting defects upon the property or from dangers arising from conditions existing on the property. Anderson v. Welty Bros. Sales Pavilion, Mo.App., 334 S.W.2d 132, 137. See also 33 Mo.Law Review...
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