Cotant v. Boone Suburban R. Co.

• Citation: 99 N.W. 115,125 Iowa 46
• Parties: BEN B. COTANT, Appellee, v. BOONE SUBURBAN RAILWAY COMPANY, Appellant
• Decision Date: 06 April 1904
• Court: United States State Supreme Court of Iowa

99 N.W. 115

125 Iowa 46

BEN B. COTANT, Appellee, v. BOONE SUBURBAN RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

April 6, 1904

Appeal from Boone District Court.--HON. W. S. KENYON, Judge.

ACTION at law to recover damages for personal injuries received by plaintiff, due, as is alleged, to defendant's negligence in maintaining an exit from one of its terminals. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.

Affirmed.

W. W Goodykoontz and Dowell & Parrish, for appellant.

C. T Cotant and Ganoe & Hollingsworth, for appellee.

DEEMER C. J. BISHOP, J., taking no part.

OPINION

DEEMER, C. J.

Defendant owns and operates an electric railway from the city of Boone to the Des Moines river, near what is known as the "High Bridge" of the Chicago & Northwestern Railway, and on the 4th day of July, 1901, was carrying passengers over the said line for hire. The west or river end of this railway ran for some distance parallel to, and immediately north of, the right of way of the Chicago & Northwestern Railroad Company, and the rights of way of the two companies were separated by a wire fence. Just prior to the 4th day of July, 1901, one Spraker, who owned some land south of the steam railway right of way, which he used as pleasure ground, constructed a stile over this wire fence, which was made by placing two ladders, each eight or ten feet in length, and fourteen or sixteen inches in width, in such a position as that two ends met over and above the fence, while the other ends were set in the earth on either side thereof. Boards running parallel with the sides of the ladders were nailed thereon, and strips or cleats at short intervals were fastened to these boards. There were no railings or handrails, and no lateral supports. Plaintiff took one of defendant's trains in the city of Boone, rode out to the western terminal at or near the Des Moines river, alighted from the car, and, seeing this stile, which was near where the train stopped, attempted to pass over it, and, as he started to descend from the top, caught his foot in such a way as that he was thrown to the ground, and received the injuries of which he complains. He said on the witness stand that as he took the second step down, and placed the weight on his foot, something broke or turned with him, causing him to lose his balance and to fall to the ground; that his foot was caught and held, so that his head and shoulders struck the ground. The alleged grounds of negligence are that:

The said stile was without railing or means of lateral support, and that the defendant, its agents or servants, so carelessly and negligently constructed, appropriated, maintained, and used said unsafe and dangerous ladder and stile, and so negligently and carelessly failed, refused, and neglected to assist plaintiff at any time or in any manner in getting over said ladders or stile or barb-wire fence, in departing from the defendant's said grounds, and so failed, refused, and neglected to provide safe means of egress and ingress from or to said grounds, as to cause each and all of the damages set out in the petition; that said stile or ladder was so defectively constructed of light and defective timber as to break and give way, and thus throw plaintiff to the ground and break his leg, causing the injury complained of.

Defendant denied any negligence on its part, and pleaded contributory negligence on the part of the plaintiff. Many points are relied upon for a reversal, the more important of which we shall consider in the order presented by appellant's counsel in their brief.

The first proposition made by them is that as defendant did not erect the stile, had not assumed control thereof, and had no right to enter upon the land of the steam railway, either to inspect or to repair it, it owned plaintiff no duty with respect thereto, and cannot be charged with negligence either in the construction or maintenance of this device. The trial court gave the following, among other instructions:

"You are instructed that, after completing its road, defendant was under no obligations to build or erect a stile or stairs over the fence from the right of way leading over and into the right of way of the Chicago & Northwestern Railway; but if you find from the evidence that said stile in question was constructed partly on defendant's grounds and partly on the grounds of the Chicago & Northwestern Railway Company, and that the same was used by the passengers from defendant's cars as the usual means of egress from said grounds, and such fact was known to defendant, and defendant permitted the same, and there was no other reasonable or safe way of egress from said grounds, then the fact that said stile was partially upon the grounds of the Chicago & Northwestern Railway Company would not relieve defendant of the obligation to exercise ordinary care in keeping said stile in a reasonably safe condition, if it allowed the same to remain and be used as the only reasonable means of egress from its grounds."

From the statement already made, it will be observed that the accident occurred on that part of the stile which was over and upon the right of way of the Chicago & Northwestern Railroad, and it is contended that defendant's responsibility ceased when the passenger passed upon the grounds of another carrier; that, at most, it was under no other duty to the plaintiff than to warn him of danger of which it had notice or knowledge, and that its liability is no greater than if the stile had been erected jointly by the steam railway company and the defendant. The defendant did not erect the stile, and there is no evidence that the Chicago & Northwestern Railroad Company had anything to do with it. Little need be said in support of the proposition that this stile was a dangerous contrivance. The jury so found, and we have no doubt of the correctness of its finding. But defendant strenuously insists that, as it had no right to enter upon the grounds of the other company to repair the device, it cannot be held liable for any injury that may have resulted from the use thereof. Ordinarily this proposition is true, but it must be remembered that this contrivance, while partly on or over the land of the Chicago & Northwestern Railroad Company, was a single, complete device, and formed a continuous passageway over the fence and if defendant invited its passengers to use it, either expressly or by implication, it was bound to at least ordinary care in seeing that it was fit for the purpose intended. That it had no right to go upon the grounds of the Chicago & Northwestern Railroad Company to make inspection or repairs is not controlling. Its passengers were not bound to ascertain at their peril what part of this stile was on the premises owned by another company, and what right defendant had to use it. Defendant undoubtedly had the right to make arrangements with this other company for the construction of a stile, and for permission to its passengers to cross its right of way; and, having invited the traveling public to use the device, it will not be permitted to say that it had no right to erect part of the contrivance upon grounds of another company. It will not do to say that the traveling public must inquire in such cases as to the right the carrier had to pass upon the grounds of another company to make repairs. This contrivance was used by defendant's passengers alone. It was not built to accommodate the steam railway or its passengers. The use made of the railway right of way was permissive only. That company had no interest in the device, did not profit therefrom in any way, and was not using it for the benefit of its patrons. It did not owe the plaintiff or the defendant company any duty whatever with reference to this stile, and the plaintiff was not going upon its grounds for the purpose of taking its trains, or for any other purpose than simply to cross them. In so doing, he was nothing more than a licensee, and the steam railway company was under no obligation to look after his safety in coming upon its premises. The use made of the stile was for the joint benefit of the defendant company and the owner of the pleasure grounds. The jury was justified in finding that the defendant company knew that it was being used by its passengers, and that it was in a dangerous condition. It was...