Archer v. Union Pacific Railroad Company
| Decision Date | 06 March 1905 |
| Citation | 85 S.W. 934,110 Mo.App. 349 |
| Parties | WYNONA C. ARCHER, Respondent, v. UNION PACIFIC RAILROAD COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. W. B. Teasdale, Judge.
REVERSED.
Judgment reversed.
N. H Loomis, R. W. Blair and I. N. Watson for appellant.
(1) Unless plaintiff was a passenger at the time she was injured she cannot recover under the allegation of the petition. Brown v. Scarbro, 97 Ala. 316. (2) We contend that plaintiff was not a passenger at the time of her injury, but was a licensee. The law applicable to this state of facts is well stated in Phillips v. Railroad, 124 N.C. 123; Hutchinson on Carriers, sec. 562; Dowd v. Railroad, 84 Wis. 105; Benson v. Traction Co., 20 L. R. A 714; Beach on Contributory Negligence, sec. 51; De Bald v. Railroad, 14 A. 576; Redigan v. Railroad, 28 N.E. 1133; Welch v. McAllister, 15 Mo.App. 492. (3) Our contention is that there was no evidence to submit this issue of negligence to the jury and manifest error was committed by the court in doing so.
William T. Jamison for respondent.
(1) Negligence in the construction of the frog and guard rail is proven by an abundance of testimony of defendant's own employees. This question of fact having been properly submitted by the court to the jury, the finding of the jury, there being sufficient testimony upon which to base their verdict, will not be by this court interfered with. It is no doubt useless to cite authorities on this proposition to this court. Strode v. Abbott, 102 Mo.App. 169; Gribble v. Everett, 98 Mo.App. 32; Contracting Co. v. Roofing Co., 98 Mo.App. 78; Woody v. Railroad, 104 Mo.App. 678; Chapin v. Stahlmuth, 102 Mo.App. 299; State v. Peebles, 178 Mo. 475; State v. McKenzie, 177 Mo. 699; Merton v. Case Co., 99 Mo.App. 630. (2) Defendant was guilty of gross negligence in not properly lighting said yards and tracks; plaintiff had been invited and directed to go to the car in question in the nighttime by defendant's agents, and relied upon their direction, which as a matter of law she had a right to do. The plaintiff did not know of their dangerous condition, but thought the tracks and yards were "smooth and nice." (3) The court did not, therefore, err in submitting to the jury by instruction numbered 2, for the plaintiff, the question of negligence in failing to light said yards and track. There was abundant evidence upon which to rest the verdict of the jury, and it being based upon sufficient testimony, will not be by this court disturbed. Strode v. Abbott, 102 Mo.App. 169; Gribble v. Everett, 98 Mo.App. 32; Contracting Co. v. Roofing Co., 98 Mo.App. 78; Woody v. Railroad, 104 Mo.App. 678; Chapin v. Stahlmuth, 102 Mo.App. 299; State v. Peebles, 178 Mo. 475; State v. McKenzie, 177 Mo. 699; Merton v. Case Co., 99 Mo.App. 630.
The plaintiff brought this action for damages resulting to her on account of personal injuries received by her (as she alleges) through the negligence of defendant. She prevailed in the trial court.
It appears that in February, 1901, the Ancient Order of Pyramids of Kansas City, Missouri, engaged an ordinary passenger car of defendant in which defendant was to convey a number of members to Topeka, Kansas, and return. The party (including plaintiff) arrived at Topeka about six o'clock in the evening, when they proceeded to a hall in the city. The car was taken off of the main track and set in on a side, or "house track," about two hundred and fifty feet from the station, where it was to be "picked up" by the train passing Topeka at an early hour the next morning and brought back to Kansas City. The defendant's division superintendent telegraphed the station agent at Topeka where to place the car during the night. The dispatch also read:
On the arrival at Topeka the station agent stated to representatives of the party, in the presence of plaintiff, that any time they wanted to go to it, the car would be lighted and warm. Plaintiff stated that her understanding was that the car was going to be set aside in the switch yards where it could be occupied by any of the party at any time during the night. Between four and five o'clock in the morning, which, at that season, was before daylight, plaintiff with about twenty others of the party left the hall and proceeded to the car. She attempted to pass around the end of the car from the south to the north side of the track when she caught her heel in a switch frog which caused her to fall and receive serious injury.
Plaintiff was a passenger on defendant's road while going to and returning from Topeka. But she was not a passenger, and defendant owed her no duty as such, while she remained in that city, except for such reasonable period before train time as she would be at or in defendant's station building in order to get aboard the train upon which she was to return. Save in exceptional instances, a person though intending to become a passenger, who uses the station as a lounging room without expectation of arrival of a train, cannot claim the high degree of care extended to passengers. The car was kept lighted and heated so that if plaintiff and others preferred to return to it during the night instead of remaining in the city proper, or instead of going to the station itself, they could do so. It was merely for the accommodation of those who preferred that course. It was merely a permissive privilege, optional with plaintiff, and so she stated. Defendant, therefore, owed no duty to them further, at the very most, than the duty any one owes to another who may come upon his premises by express or implied invitation. What is that duty?
In the case of Bennett v. Railway, 102 U.S. 577, 26 L.Ed. 235, it is said that, "the owner or occupant of land, who induces or leads others to come upon it for a lawful purpose, is liable in damages to them, they using due care, for injuries occasioned by the unsafe condition of the land or its approaches, if such condition was known to him and not to them, and he negligently suffered it to exist without giving timely notice thereof to them or the public." In Carleton v. Franconia Co., 99 Mass. 216, the court said: "The owner or occupant of land is liable in damages to those coming to it, using due care, at his invitation or inducement, express or implied, on any business being transacted with, or permitted by him, for any injury occasioned by the unsafe condition of the land,...
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