Atchison, T. & S. F. Ry. Co. v. Cogswell
| Decision Date | 02 February 1909 |
| Docket Number | Case Number: 919 Ind Ter T |
| Citation | 23 Okla. 181,99 P. 923,1909 OK 27 |
| Court | Oklahoma Supreme Court |
| Parties | ATCHISON, T. & S. F. RY. CO. v. COGSWELL. |
¶0 1. CARRIERS--Injuries to Persons at Stations. A railway company is bound to exercise ordinary care for the safety of a person who is upon its premises for the purposes of meeting an incoming passenger, and is liable to such person for injuries sustained on account of the railway company's failure to exercise such care.
2. SAME--Evidence. A person went to the depot of a railway company to meet an incoming passenger with whom he had an engagement to meet him for the purpose of continuing, after he had met him, a business negotiation between them. Held, that the railway company was liable to such person for injuries received by him because of the negligence of the company in permitting its station platform to become in a dangerous condition, on account of which said person fell and was injured.
3. JUDGMENT--Conformity to Verdict--Reduction in Amount--Right of Court. Where the verdict in an action for damages is deemed by the court to be excessive, it may impose upon the successful party the alternative of accepting a reduced amount or of submitting to a new trial, but it has no power to render judgment for the smaller sum where the plaintiff refuses to remit and objects to such action of the court, and such action on the part of the court is error as to both parties.
Error from the United States Court for the Northern District of the Indian Territory; Joseph A. Gill, Judge.
Action by Jud Cogswell against the Atchison, Topeka & Santa Fe Railway Company. Judgment for plaintiff, and defendant brought error to the United States Court of Appeals in the Indian Territory, and plaintiff filed a cross-bill, and the cause was from that court transferred to the Supreme Court of Oklahoma under the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 267). Reversed.
This action was brought by Jud Cogswell, plaintiff, against the Atchison, Topeka & Santa Fe Railway Company, defendant, in the United States District Court for the Northern District of the Indian Territory at Bartlesville, for damages sustained on account of personal injuries by him received at defendant's station platform in the town of Bartlesville, caused by the alleged negligence of the railway company. The negligence alleged by plaintiff on account of which he seeks to recover his damages is as follows:
"That on or about the 28th day of December, A. D. 1906, said defendant, disregarding its duties, negligently and carelessly permitted the said platform at said station or depot house to be in improper and dangerous condition, and to be and remain in an unsafe and dangerous condition, and said station and platform were by defendant negligently and carelessly operated, kept, and maintained, in that said defendant suffered, allowed, and permitted a large hole to be in said platform of said station, which was by defendant negligently and carelessly covered by a loose and un-nailed board, and that on said date the plaintiff while lawfully, rightfully, and necessarily walking along and over said platform, for the purpose of meeting a friend whom he expected on an incoming train, did, between the hours of 8 and 9 o'clock in the evening of said day, step and fall into and through said hole; that in order for the plaintiff to enter said station, or to meet said train it was necessary for him to pass over said platform wherein was said defective portion and hole; that the said platform was not lighted, and on said evening was dark, and that said unsafe and dangerous condition of said platform was well known to said defendant."
He alleged that, solely by reason of said negligence of defendant in permitting said hole and loose board to remain as alleged, he was precipitated into and through the hole in the platform, and his leg was seriously and permanently injured. Defendant in its answer specifically denies all the allegations of the petition. The case was tried to a jury, who returned a verdict for plaintiff, and assessed his damages at $ 1,600. On motion for a new trial the court required the plaintiff to elect to accept a judgment for $ 1,000 in lieu of the amount fixed by the jury, which plaintiff declined to do. The court then remitted $ 600 upon his own motion from the amount fixed by the jury, and rendered judgment in favor of plaintiff for $ 1,000. From this judgment defendant appealed to the United States Court of Appeals of the Indian Territory, and plaintiff has filed his cross-appeal, complaining of the court's action in reducing the judgment. The case is now before this court for final disposition under the provisions of the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 267).
J. R. Cottingham, Charles H. Woods, and Geo. M. Green, for plaintiff in error.
Montgomery & O'Meara and Jno. H. Burford, for defendant in error.
No copies of briefs reached the reporter.
¶1 Plaintiff in error has made 27 assignments of error in its petition, but all may be considered under two propositions. The issues of fact, including the alleged acts of negligence on the part of the railway company, were found by the jury in favor of defendant in error.
¶2 The first proposition to be determined is whether the facts found constitute in law negligence in the railway company as against defendant in error. Defendant in error on the 28th day of December, 1906, went, after night, to defendant's depot in Bartlesville to meet a passenger by the name of Crane, whom defendant in error expected on one of the incoming passenger trains of the railway company, due to arrive from Coffeyville at about the hour plaintiff went to the depot. Crane lived in Bartlesville, and had gone to Coffeyille on the preceding day, and was to return to Coffeyville on the next day thereafter. A deal concerning a barber shop was pending between Crane and defendant in error. Defendant in error had agreed to meet Crane. The night was dark, and as plaintiff stepped upon defendant's depot platform, which he did just as the train arrived, his foot passed through a hole in the platform, and he fell and fractured one of the bones of his leg and inflicted other injuries. It is conceded that plaintiff had no other business at the depot than to meet the passenger, Crane, and that his purpose in meeting Crane was that he had agreed to meet him, and that they were to continue the negotiations pending between them relative to the barber shop.
¶3 The railway company contends that plaintiff, under these facts, was at its depot and upon its premises as a licensee, and that it owed him no duty except not to willfully or wantonly injure him. On the other hand, it is contended by plaintiff that he was at the depot for the purpose of meeting an incoming passenger, and that, although his principal purpose in meeting the passenger, Crane, was to revive the business negotiation pending between them, he was there under the implied invitation of the railway company, and that it owed him ordinary care in the construction and maintenance of its depot and platforms to avoid injuring him.
¶4 A person who does not go upon the premises of a railway company as a passenger, servant, trespasser, or as one standing in any contractual relation to the corporation, but who is permitted by the company to come upon its premises for his own interest, convenience, or benefit, is upon the premises of such railway company as a licensee, and the railway company is liable only for willful or wanton injuries which may be done to such licensee by the gross negligence of its agents or employes. Woolwine's Adm'r v. Ches. & O. Ry. Co., 36 W. Va. 329, 15 S.E. 81, 16 L. R. A. 271, 32 Am. St. Rep. 859; Sweeny v. Old Colony, etc., Ry. Co. (Mass.) 10 Allen 368, 87 Am. Dec. 644; Pittsburgh, F. W. & C. Ry. Co. v. Bingham, Adm'x, 29 Ohio St. 364; Burbank v. Illinois Central Ry. Co., 42 La. Ann. 1156, 8 So. 580, 11 L. R. A. 720; Elliott on Railroads (2d Ed.) vol. 3, par. 1251. On the other hand, one who goes upon the premises of a railway company to transact business with it or its agents or to transact business in the operation of the road or who is there by invitation of the company, express or implied, is lawfully there, and the railway company owes him a duty of using ordinary care in the construction and maintenance of its depot and platforms to avoid injuring him. Bennett v. L. & N. Ry. Co., 102 U.S. 577, 26 L. Ed. 235. One who goes with the permission and acquiescence of the owner upon the premises of another solely for his own pleasure and benefit goes as a licensee. Benson v. Baltimore Traction Company, 77 Md. 535, 26 A. 973, 20 L. R. A. 714, 39 Am. St. Rep. 436; 3 Elliott on Railroads (2d Ed.) par. 1248. But one who goes upon the premises of another in a common interest or to a mutual advantage is there under the implied invitation of the owner.
¶5 The test as to whether there is an implied invitation is stated by Mr. Campbell in his treatise on Negligence in the following language:
"The principle appears to be that invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using it."
¶6 This language is quoted with approval in Bennett v. L. & N. Ry. Co., supra; but the court in that case does not, and we do not here, undertake to say that this principle furnishes an invariable test by which it may be determined in every case whether a person is upon the premises of another under an implied invitation. The courts have not, to our knowledge, fixed any general rule by which such test may be made, and whether an invitation exists in any case must be determined by the circumstances surrounding the case. But, where the facts of any case bring it within the language of the first sentence of the above quotation, an invitation is implied. It now seems to be the doctrine of the...
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