Byars v. Davis

• Decision Date: 29 January 1923
• Docket Number: 23002
• Citation: 131 Miss. 1,94 So. 853
• Court: Mississippi Supreme Court
• Parties: BYARS v. DAVIS, Director General

94 So. 853

131 Miss. 1

BYARS v. DAVIS, Director General

No. 23002

Supreme Court of Mississippi

January 29, 1923

1 RAILROADS. One going on track at place other than crossing in going to depot held a trespasser.

Where a railroad company provided a board crossing over the tracks for those desiring to cross the track to the depot, one who went upon the track a few feet from the crossing under the mistake belief that there was an excavation or ditch in the path leading to the crossing was a trespasser and not on the track by invitation or necessity.

2 RAILROADS. Trespasser may recover for willful or wanton injury.

As one who, in going to a railroad depot, did not use a crossing maintained by the company, but went upon the track at a different point, was a trespasser, the railroad owed her no duty except to not willfully or wantonly injure her.

3 RAILROADS. One crossing track at unusual place acts at own peril.

Where a railroad provided a reasonably safe crossing for persons to use in going to the depot, one who undertook to cross at another and unusual place, which proved to be unsafe, did so at her own peril.

4 RAILROADS. Maintenance of excavation between tics short distance from board crossing held not willful negligence.

Where a railroad maintained a board crossing for the use of persons going to the depot, it was not willful negligence, making it liable to a trespasser, to make an excavation between the ties from five to fifteen feet from the crossing for the purpose of carrying off water overflowing from a water tank.

HON. W. A. ALCORN, JR., Judge.

APPEAL from circuit court of Coahoma county, HON. W. A. ALCORN, JR., Judge.

Action by Mrs. A. T. Byars against Jas. C. Davis, director general and agent of the United States (Yazoo & Mississippi Valley Railroad Company). From a judgment for defendant, plaintiff appeals. Affirmed.

Judgment affirmed.

Maynard, Fitzgerald & Venable, for appellant.

It is admitted that if Mrs. Byars was a trespasser, the defendant owed her no duty other than not to injure her wilfully, and that the question on this phase of the case is whether or not under the circumstances, assuming her a trespasser, the injury amounted to wilfulness. Our contentions are, first, that Mrs. Byars was not a trespasser in entering upon the track at the place where and in the manner in which she did; and, second, that if it be assumed that she is a technical trespasser, conduct of the defendant amounted to that degree of wilfulness which would impose liability regardless of this fact.

There must always have been some exercise of volition making a party active or passive somewhere in the sequence of events preceding the harm and a volition capable of making or preventing the harm. Quill v. Empire State Tel. & Tel. Co., 159 N.Y. 1, 53 N.E. 679; Weeks v. McNulty, 74 N.Y. 509; Atchison, Topeka & Santa Fe R. R. Co. v. Bales, 16 Kan. 252. The law does not, however, impute liability because the act of the person is the cause of a harm in the above sense. It requires as a rule at least more than a volition simply not to take action when the damage could be prevented, but as a rule requires some act and in addition requires that the causation should be culpable.

It may be said then generally that wherever a person foresees or should foresee that a contemplated act would probably result in damages to another, the law imposes the duty upon him of abstaining from this conduct and the notion of justice that holds him liable for the damages, if he chooses to do the act, is that having chosen the dangerous path, he should be held liable for the consequences. When these conditions are met, the act of the person is held to be the legally responsible cause. Vale v. Bliss, 50 Barb. (N. Y.) 358; Doyle v. Muelbrien, 7 Abb. Pr. N. S. (N. Y.) 258; Collins v. Hazel Lumber Co., 54 Wash. 524, 103 P. 798.

This principle is illustrated in the cases by persons finding themselves in an emergency choose a certain course of conduct to extricate themselves and are hurt. The fact that they chose this course of conduct does not excuse the one who negligently placed them in the emergency, because this conduct on the part of the injured person should have been foreseen as probable. The case illustrating the principle from our own reports, though presented in a different phase, is the case of Brookhaven Lumber & Mfg. Company v. The Railroad Company, 68 Miss. 432. Also, the Union Pacific Railroad Company v. McDonald, 152 U.S. 269. We conclude then on this phase of the case that the act of the railroad company in constructing the ditch constituted a case at least for the jury to decide whether or not this act was the legally responsible cause of the injury.

In the case at bar, the defendant says that though Mrs. Byars has suffered a damage in her body and feelings which is the subject of general protection by the law and even though the railroad company is, according to logic and to law, the legally responsible cause of it, still the damage done should be excused because in the instant case Mrs. Byars was a trespasser. We take issue with the defendant in the court below and reply to this that in the first place she was not a trespasser, and again we say that under the circumstances of the case even though she were a technical trespasser, the excuse does not apply.

Another exception to the rule, or rather another case where the rule does not apply, is where the injury was caused intentionally by the defendant or was caused by the negligence of the defendant, amounting to wanton recklessness. Brownwell v. Flagler, 5 Hill. 282; Townsend v. Wethen, Kings Bench, 9 East, 277; Dean v. Clayton, Common Pleas, 7 Tant, 489; Byrd v. Holbrook, Com. Pleas, 4 Bing. 629; I. C. R. R. Co. v. Leiner, 202 Ill. 624, 67 N.E. 98; Palmer v. Gordon, 173 Mass. 410; Southern R. R. Co. v. Pitman, 52 So. 207; Stevens v. Yazoo, etc., R. R. Co., 81 Miss. 195; Balmore v. Vicksburg, etc., R. R. Co., 85 Miss. 426; Turner v. Y. & M. V. R. R. Co., 33 So. 283.

Another case in which it is held that the rule of the excuse on the ground of trespass does not lie, is found in cases where the plaintiff's trespass was unintentional and the probability of such trespass should have been foreseen. A case based on this principle is Bonds v. Ward, Com. Bench (Eng.) 3 C. B. 392.

In all of these cases, the basis of taking the occurrence out of the excuse of trespass is either that the negligence was so wanton or wilful as to evidence a disregard of consequences in view of the probability of the presence of the trespasser or else that the trespass was apt to be committed unintentionally and could and should have been foreseen, or that the act was done in contemplation of the presence of the trespasser on the premises as illustrated in the spring-gun cases with which the court is familiar and which are unnecessary to cite.

To like effect are the holdings that there is liability for unguarded excavation upon lands outside of public highway but so near to it as to endanger those who pass along the way in the exercise of ordinary caution, holding that this is a public nuisance from which may spring a right of action to one who suffers individual injury. Crogan v. Schiele, 53 Conn. 186, 55 Am. Rep. 88; Lepnick v. Gaddis, 72 Miss. 200; Butz v. Cavanaugh, 137 Mo. 503, 59 Am. St. Rep. 504.

In other words, the owner or occupier, after permitting by his license the use of the property in one condition and knowing that the licensee has become accustomed to the property in its then condition, cannot change the property so as to make it more dangerous for the reason that he should foresee the presence of the licensee and his probable injury by change of which he has not had notice. Cases to this effect are Lepnick v. Gaddis, 72 Miss. 200, and Felton v. Aubrey, 200 C. C. A. 436, and see the cases compiled in the note in Ann. Cas. 1915D. 326. Some courts differ from this doctrine but this is the overwhelming view. The case of Union Pacific R. R. Co. v. McDonald, 152 U.S. 269, is instructive.

Applying this principle to the case at bar, we respectfully submit to the court that by the location of the depot, the filling in of the track and particularly by the building of the ditch, it being necessary to cross it in order to reach the right of way and the depot, the railroad company should have foreseen that some one coming to the depot on legitimate business with the carrier would probably on a dark and rainy night seek to go above the head of the ditch entering upon the tracks above the planked-in space, this being particularly true in view of the fact that people crossed along the right of way contiguous to this spot and that there was no walk or lighted way across the streets and right of way to the tracks.

We contend further, however, that under the facts of this case that Mrs. Byars was not a trespasser but was an invitee and therefore the railroad company owed her the duty to care for her safety. On this point, we believe that it is hardly necessary to seek for authorities beyond our own state. Of course, it is admitted on all hands that it is the duty of the railroad company to make its depot and approaches reasonably safe for those going there on lawful business. Neither will it be, nor can it be, contended in view of the facts of this record that Mrs. Byars' business was not with the company and of such a character to bring her within the protection of this rule. As we understand it, the reason for the rule of due care towards invitee is because as to these the owner or occupier of lands must be held to expect their presence and therefore must be held to have foreseen the probability of danger to them from any dangerous condition.

We particularly call the court's attention to...