Gulf, M. & N. R. Co. v. Sparkman

• Decision Date: 03 January 1938
• Docket Number: 32895
• Citation: 180 Miss. 456,177 So. 760
• Parties: GULF, M. & N. R. Co. v. SPARKMAN
• Court: Mississippi Supreme Court

177 So. 760

180 Miss. 456

GULF, M. & N. R. Co. v. SPARKMAN

No. 32895

Supreme Court of Mississippi

January 3, 1938

Division A

1 RAILROADS.

Where place where flag station was located and through which freight train was running at time freight cars were derailed and which ran into station building thereby injuring plaintiff who was waiting to see a new train pass, was not an incorporated town or village, negligence of railroad could not be predicated on ground that train was running at unlawful or reckless rate of speed.

2 RAILROADS.

Where plaintiff, hearing rumor that new train would run past flag station, went to station to see train, and possibly to ride thereon, and while waiting was injured as result of derailment of freight cars which struck station building railroad owed plaintiff no duty to post fact that the new train was not to run, where it had never run and was not scheduled to run, as against his contention that there was no posting of hours of arrival and departure of train so that he could determine when to be there (Code 1930, section 7080).

3 RAILROADS.

Where some of freight cars were derailed as result of switch being opened, and ran into flag station, thereby injuring plaintiff, waiting at station, railroad had no duty to constantly watch track to insure its safety for purpose of avoiding unforeseen accidents.

4. NEGLIGENCE.

To recover for an injury to a person or property by reason of negligence or want of due care, there must be shown to exist some obligation or duty toward plaintiff which defendant has left undischarged or unfulfilled.

5. RAILROADS.

The prima facie presumption of negligence which arises under statute providing that injury to person or property by railroad is prima facie evidence of want of skill must yield to proven facts (Code 1930, section 1580).

6. RAILROADS.

Where plaintiff was waiting at flag station expecting to see a new train which, however, was not scheduled to run, and while he was standing near station house a through freight train arrived and several freight cars were derailed and they demolished station building and plaintiff was injured by flying timbers, and derailment was caused by spur track switch being opened, but there was no evidence that any railroad employee was responsible therefor and company kept no agent at station, and switch was securely locked when examined by foreman on previous afternoon and spur track was not used in meantime, the derailment was an "accident" which could not have been foreseen by exercise of due care, and railroad was not liable (Code 1930, section 1580).

HON. D. M. ANDERSON, Judge.

APPEAL from the circuit court of Leake county HON. D. M. ANDERSON, Judge.

Action by Anthony Sparkman against the Gulf, Mobile & Northern Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

Reversed, and judgment here for the, appellant.

Flowers, Brown & Hester, Robert Burns, Jr., and F. W. Bradshaw, all of Jackson, for appellant.

The motion of appellant to exclude the evidence of appellee, made after appellee had rested his testimony and evidence, should have been sustained because the testimony and evidence showed that appellee was not at the station of appellant at Tuscola as an invitee, but at most as a bare licensee, and thai as a licensee appellee had no right of action against appellant.

Section 7080, Code of 1930; Norfoldt & W. Ry. v. Wood, 99 Va. 516, 37 S.E. 846; Gillis v. Penn. R. Co., 59 Penn. 129, 98 Am. Dec. 317; I. C. R. R. v. Arnola, 29 So. 768.

The rule of liability to a bare licensee is the same as to a trespasser.

Y. & M. V. R. R. Co. v. Cox, 132 Miss. 564, 97 So. 7; I. C. R. Co. v. Arnola, 29 So. 768; Railroad Co. v. Harrison, 61 So. 655, 105 Miss. 18; L. & N. R. R. Co. v. Williams, 69 Miss. 631, 12 So. 957.

It seems to us to be clear that appellant violated no duty that it owed to appellee. The servants in charge of the train did nothing in the operation thereof to inflict injury upon him. The derailment was as much a surprise to them as it was to appellee. There was nothing they could do to avoid the injury after seeing appellee in a position of peril. In other words, the derailment was an unavoidable accident, and appellant should not be held for the injury suffered by appellee as a result of the derailment.

The peremptory instruction requested by appellant at the conclusion of all the evidence should have been granted because of the reasons advanced, and for the additional reason that the Chief Dispatcher of appellant testified that the stream tine train was not scheduled to run on the day of the derailment, July 18, 1935, and did not run on that date, and since the train was not scheduled to run, and did not run, it cannot be said that there was an invitation from appellant to appellee to come to its station at Tuscola and take passage on its stream line train, and appellee was a bare licensee at the station at the time of the accident, and has no right of action against appellant because of the injury received as a result of the derailment of the freight train.

Holland v. Sparks, 92 Ga. 753, 18 S.E. 990; Woolwines Admr., v. C. & O. R. Co., 15 S.E. 81; Dooley v. M. & O. R. R., 12 So. 956.

One cannot make of himself an invitee of a railroad by going to its station to board a train that is not scheduled to run simply because he has heard a rumor that such a train will run. Liability for this relation cannot be imposed on this manner. Such a relation could not be created without the knowledge or participation of the railroad. The train did not run and was not scheduled to run. The next train scheduled to run after the time of the derailment was due at 5:26 p. m., more than three and one-half hours thereafter. It is ridiculous to say that appellee was an invitee of appellant When he went to its station at Tuscola at 1:48 p. m., to take passage on a train due at 5:26 p. m. There must be some reasonable limit of time before the arrival of a train within which one may be considered an invitee.

There is no proof of negligence on the part of the servants of appellant in the operation of the train.

The servants of the railroad company were guilty of no negligence toward appellee because his injuries were caused by an unforeseen accident which was as unexpected to them as to him, and the injuries suffered by appellee were unavoidable insofar as appellant was concerned at the time and place in question, and the injuries were really caused because appellee exposed himself to the dangers and hazards of railroading when he really had no business to transact with the railroad company at the time and place, because they had no trains to run at that time on which he could take passage, and appellee had no right to rely upon rumor that a train was to run, and to expect to take passage thereon.

22 R. C. L., page 916, secs. 164, 165; 2 Thompson's Commentaries on the Laws of Negligence, sections 1713, 1714, 1715 and 1718; 20 R. C. L. 23; 11 L. R. A. 689, notes; I. C. R. R. v. Miner, 202 Ill. 624, 67 N.E. 398, 95 A. S. R. 266.

Since beginning the preparation of this brief, our attention has been directed to Illinois Central Railroad Company v. Laloge, decided by the Court of Appeals of Kentucky, 62 L. R. A. 405, wherein the court in construing a statute similar to Section 7080 of our 1930 Code, said: "But we have in this state what may be regarded as legislative construction of the length of time that should be considered reasonable for the carrier to be required to look out for, and safeguard, its passengers before they have taken actual passage. Ky. Stat., sec. 784: 'All companies shall keep their ticket offices open for the sale of tickets at least 30 minutes immediately preceding the schedule time of departure of all passenger trains from every regular passenger depot from which such trains start or at which they regularly stop; and shall open the waiting room for passengers at the same time as the ticket office, and keep it open and comfortably warmed in cold weather until the train departs.' The carrier is not an innkeeper. It cannot, in the discharge of its other duties required by the law, be held to furnish accommodation for the entertainment, for an indefinite length of time, of those who contemplate in the future becoming its passengers. It would have been just as reasonable to have held appellant liable for the safety and comfort of appellee at any time, while at its depot, from 9 o'clock in the morning of the 16th to 12:30 in the morning of the 17th, as for the time sued for. We do not mean to hold that, if the carrier agrees to accommodate the proposed passenger by a longer time than the statute provides, it would not be liable for any injuries sustained because of its negligence during such time. But in the absence of such agreement, express or implied, we hold that the proposed passenger cannot claim the benefit of that relation by coming onto the carrier's premises an unreasonable length of time before the train which he expects to take passage on is due to depart, and that such reasonable time has been fixed by the statute above quoted. It follows that the peremptory instruction asked for by appellant should have been given."

Phillips v. Southern Ry. Co., 124 N.C. 123, 45 L. R. A. 163.

A. M. Warwick, of Carthage, for appellee.

The trial court very properly refused a peremptory instruction in favor of appellant at the close of the evidence offered by appellee. Appellant invited the traveling public to its station at Tuscola to take passage on its trains, and appellee had a right to rely on this invitation and did appear at its station for the purpose of taking passage on its train. He was an invitee.

Adams v. Y. & M. V. R. R. Co., 115...