Fort Worth & D. C. Ry. Co. v. Mills

• Decision Date: 22 April 1940
• Docket Number: No. 5150.,5150.
• Parties: FORT WORTH & D. C. RY. CO. v. MILLS.
• Court: Texas Court of Appeals

Page 513

140 S.W.2d 513

FORT WORTH & D. C. RY. CO. v. MILLS.

No. 5150.

Court of Civil Appeals of Texas. Amarillo.

April 22, 1940.

Rehearing Denied May 20, 1940.

Appeal from District Court, Wheeler County; W. R. Ewing, Judge.

Action by W. A. Mills against the Fort Worth & Denver City Railway Company to recover damages for personal injuries sustained by the plaintiff's wife in fall from steps of platform attached to defendant's shipping pens at certain city. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment reversed, and judgment directed that plaintiff take nothing.

J. B. Clark, of Shamrock, and Luther Hudson and Thompson & Barwise, all of Fort Worth, for appellant.

Marion Reynolds, of Shamrock, and Cummings & Johnson, of Fort Worth, for appellee.

STOKES, Justice.

This case was instituted by appellee, W. A. Mills, to recover damages for personal injuries to his wife which he alleged she received in a fall from the steps of a platform attached to appellant's shipping pens at Magic City in Wheeler County. Appellee was an employee of appellant in the capacity of section foreman and, appellant having no section house or regular established quarters on the section for use of the foreman and his family and the section hands, furnished to appellee two outfit cars which consisted of ordinary box cars that had been remodeled and equipped for residential purposes. One of these cars was used as a living room and the other as kitchen and dining room in one end and sleeping quarters in the other end. In connection with these cars appellant also had another outfit car which was used by other employees, presumably the section hands, in which they maintained batching quarters where they did their own cooking. Under ordinary circumstances the only means of ingress and egress to these cars were flights of perpendicular steps or short ladders at the doors which were attached to the cars. It being difficult for Mrs. Mills, who was an unusually heavy woman, to climb up and down these perpendicular steps, appellee requested appellant's train crew to locate the outfit or boarding cars alongside the platform at the shipping pens. The floor of the platform was practically on a level with the floors of the cars and at the east end of the platform was a flight of five ordinary steps of convenient rise and incline for ascent and descent. It was principally for the purpose of having access to this more convenient means of egress and ingress to the outfit cars being occupied by appellee and his wife that they requested the train crew to "spot" or locate the outfit cars alongside the platform.

The cars had been so located and appellee had been using them in this manner for about nine months immediately preceding Mrs. Mills' injury. On May 10, 1938, Mrs. Mills, desiring to leave the outfit car and embark on a legitimate mission, stepped out on the shipping pen platform, approached the flight of steps at the east end thereof, and attempted to descend to the ground. As she descended from the platform to the first step, the step tilted or turned under her foot or in some manner came loose and she was precipitated down the steps to the ground, receiving injuries described in the petition.

The case was submitted to a jury upon special issues and upon the verdict returned in answer thereto, judgment was rendered in favor of appellee in the sum of $2,000. Appellant filed a motion for a new trial which was overruled and it gave notice of appeal which it has perfected, and it presents the case in this court upon ten propositions of law under which it contends the judgment should be reversed and rendered in its favor or remanded for another trial.

The case seems to have been tried upon the theory that appellee was the tenant of appellant in occupying the outfit cars and that the duties and liabilities of the parties are governed by the principles of law applicable to the relationship of landlord and tenant. Appellant contends, first, that the platform and steps not being a part of the outfit cars and the cars being placed alongside of the platform for the convenience of appellee, he was a licensee in respect thereto; that no duty devolved upon appellant to maintain them in safe condition and the court, therefore, erred in refusing a peremptory instruction and in overruling its motion for a judgment upon the verdict. Secondly, that at most Mrs. Mills was no more than an invitee in her use of the steps and appellant owed her no duty in respect thereto further than to protect her from hidden or latent dangers known to it.

Other propositions are presented in which appellant assigns error in the submission of certain special issues and elements of damage but the two contentions we have mentioned present the controlling questions and we do not deem it necessary to discuss the others.

A licensee is said to be a person whose entrance upon or use of the premises of another is permitted by the owner under such circumstances as that he is not a trespasser but is without any express or implied invitation. He, therefore, occupies a position lying somewhere between that of a trespasser and that of one who has been invited upon the premises by the owner or one having authority to extend an invitation to enter upon the same. He is on the premises by sufferance and not by virtue of any business or contractual relation with, or any enticement, allurement, or inducement to enter being held out to him by, the owner or occupant, but merely in his own interest or for his own purposes, benefits, convenience or pleasure. Hicks v. Gulf, C. & S. F. Ry. Co., Tex.Civ.App., 212 S.W. 840; Mack v. Houston, E. & W. T. Ry. Co., Tex.Civ.App., 134 S.W. 846.

We do not agree with appellant that appellee was upon the stockpen platform of appellant merely by sufferance nor that he was there without any contractual relations, merely in his own interest and for his own purposes and benefit. By "spotting" or placing the outfit cars alongside the platform appellant consented to the use by appellee of the platform in the same manner as it consented for the use by him of the outfit cars which he was using as a place of residence while discharging the duties incident to his employment by appellant. It is true the evidence shows and the jury found that the outfit cars were placed alongside the platform at the request of appellee but it is quite evident from the record that appellant's employees in charge of the train and who placed the cars at the platform, as well as the other agents and servants of appellant who were in charge of such matters, knew the purpose for which appellee desired the cars placed at the platform and were familiar with, and acquiesced in, the use to which appellee intended to, and did, subject the platform. That use was in connection with and as a part of the premises utilized by him as a place of abode while he was employed at that point by appellant. This, we think, removes the relationship from that of a mere licensee and presents a situation entirely different from that which the law contemplates in designating the relationship that must exist in order to create the status of a licensee.

Nor do we agree with appellant in its contention that appellee was a mere invitee upon the platform and steps connected with the shipping pens. This relationship is created when one is upon the premises of another under circumstances rendering his presence of mutual aid to both. Galveston Oil Co. v. Morton, 70 Tex. 400, 7 S.W. 756, 8 Am.St.Rep. 611. It was said in the case of Kruse v. Houston & T. C. Ry. Co., Tex.Civ.App., 253 S.W. 623, 625: "In the absence of some relation which inures to the mutual benefit of the two, or to that of the owner, no invitation can be implied, and the injured person must be regarded as a mere licensee."

While it is true that the use of the platform and steps in a sense inured to the benefit of the Railway Company, it cannot be said to be that kind of use which is contemplated when speaking of the relationship of the owner of the premises and an invitee thereon. Broadly speaking, that which was convenient for its employees and which made them more comfortable in their living quarters inured, to some extent at least, to the benefit of the Railway Company, but the same could be said of the outfit cars in which they slept at night and in which they maintained their place of residence. In our opinion, the case is not governed by the rules which control these relationships and these contentions of appellant are untenable.

Conceding that the relationship existing between appellant and appellee was that of landlord and tenant, as contended by appellee, in our opinion they were not entitled to a judgment against appellant upon the facts revealed by the record. It is not alleged nor contended by appellee that appellant agreed to make any repairs to, or improvements upon, the platform and steps, nor that it agreed to maintain them in the condition in which they were at the time appellee appropriated them some nine months before Mrs. Mills was injured. It is not alleged nor even suggested that appellant was guilty of any fraud or concealment by failure to disclose hidden defects of which it had any knowledge, either at the time appellee appropriated the steps and platform, or afterwards. It is well-established law in this state, and most, if not all, of the other states in the Union, that in the absence of a statute or an agreement by the landlord to make improvements or repairs to the...