Gilmore v. Kansas City Terminal Ry. Co.

• Decision Date: 02 October 1967
• Docket Number: No. 24713,24713
• Parties: Ruby GILMORE, Plaintiff-Appellant, v. KANSAS CITY TERMINAL RAILWAY COMPANY, a corporation, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 520

421 S.W.2d 520

Ruby GILMORE, Plaintiff-Appellant, v. KANSAS CITY TERMINAL RAILWAY COMPANY, a corporation Defendant-Respondent.

No. 24713.

Kansas City Court of Appeals, Missouri.

Oct. 2, 1967.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Dec. 4, 1967.

Allan R. Browne, Ennis, Browne & Martin, Kansas City, for appellant.

Sam D. Parker, W. M. Stapleton, Daniel M. Dibble, Lathrop, Righter, Gordon & Parker, Kansas City, for respondent.

R. KENNETH ELLIOTT, Special Judge.

Plaintiff, an employee of the Pullman Company for over 20 years, was walking to her employment on January 17, 1964, at about 5:15 a.m. when she fell on a patch of ice located on defendant's premises and was thereby injured. A jury verdict of $1,500 was returned for plaintiff and the trial court thereafter sustained defendant's after-trial motion for judgment and also granted in the alternative, a new trial. Plaintiff appeals.

The fundamental question presented here is the status of the plaintiff on defendant's premises at the time she fell. Plaintiff contends that she was a business invitee of defendant. Defendant maintains that the plaintiff was at best a licensee and defendant owed plaintiff no duty of ordinary care, but that plaintiff must take the premises as she found them. Twine v. Norris Grain Co., Mo.App., 226 S.W.2d 415.

The determine whether the evidence will sustain plaintiff's contention we shall, of course, view plaintiff's evidence in the light most favorable to plaintiff, give her the benefit of all favorable reasonable inferences, and disregard defendant's evidence unless it aids plaintiff's case. Capriglione v. Southwestern Bell Telephone Co., Mo., 376 S.W.2d 205; Gardner v. Simmons, Mo., 370 S.W.2d 359; Keeney v. Callow, Mo., 349 S.W.2d 75.

Plaintiff testified that it was dark at the time she fell as she walked on defendant's premises toward the Pullman Company area which was located on defendant's land, and that there was no way to go to work except over the defendant's property. She said that for 25 years, without objection by defendant, she had come to work by driving onto defendant's premises from the north, where she parked her car, and walked down a ramp and over a board walkway to the Pullman building. Plaintiff further testified and admitted that she had seen defendant's Exhibit 3, which was a bulletin dated January 18, 1963, prohibiting parking in certain areas. Defendant's master mechanic, Lehman, testified that the area prohibited by his bulletin was the one in which plaintiff parked. Plaintiff testified that she parked in the north yard but that there was a south yard in which she could have parked which was farther away than the north yard. Plaintiff further testified that she asked Lehman in a telephone call for permission to park closer and that he refused, but did tell her to park over there (north) or on Southwest Boulevard, which was farther. Plaintiff's testimony did not specify when this conversation took place, and such conversation was denied by defendant's witness Lehman. Plaintiff then testified on cross-examination that she had not asked anyone for permission to park where she did on the day of the accident.

The only evidence, other than that as to the ownership of the land, relating to the relationship of defendant with plaintiff's employer, came from defendant's witnesses, wherein it was disclosed that the Pullman Company had a building on defendant's land to which building plaintiff came to work; that the defendant would switch cars, both Pullman and other railroad cars, to the Pullman premises, but that the cars were serviced for other railroads, not for defendant. Defendant operates no trains and owns no passenger equipment.

Defendant's evidence disclosed that the 'North Coach yard', where plaintiff fell, was abandoned and closed in 1963, and that there was a parking lot available to Pullman employees to the south of the Pullman building.

This court, in Twine v. Norris Grain Co., supra, analyzed in detail the classification of persons who enter land in the possession of another. In part, this court stated in that case as follows; 'A licensee (often called 'a bare licensee') is one who enters the premises for his own purpose and with the express or implied consent of the possessor. The possessor is under no duty to such a person to make the premises safe or to warn of dangerous conditions thereon, the possessor being liable only for 'wanton or willful' acts or 'active negligence.' Glaser v. Rothschild, en Banc, 221 Mo. 180, 184, 120 S.W. 1, 2, 22 L.R.A.,N.S., 1045, 17 Ann.Cas. 576. An invitee (sometimes called a 'business guest') is one who enters the premises with the express or implied consent of the possessor and for some purpose of real benefit or interest to the possessor or for the mutual benefit of both. The duties which a possessor owes to such a person include the obligation to made the premises safe or to warn of dangerous conditions thereon, as well as the duties which are owed to a licensee. Giles v. Moundridge Milling Co., 351 Mo. 568, 573, 173 S.W.2d 745, 748; Cash v. Sonken-Galamba Co., 322 Mo. 349, 453, 17 S.W.2d 927, 929.'

Plaintiff cites Gruhalla v. George Moeller Construction Co., Mo.App., 391 S.W.2d 585, wherein the plaintiff attended a meeting held at a church school and fell in the foyer when leaving. The St. Louis Court of Appeals reversed the trial court and directed that court to enter judgment for defendants, saying at page 591: 'While we have said that it can be assumed that plaintiff was on the school premises with the permission and implied consent of Father Naes, the mere fact of such an implied invitation alone is not sufficient to make one an invitee in the legal sense. Mere permission without more involves 'leave and license,' but...