Mathias v. Denver Union Terminal Ry. Co.

Decision Date24 March 1958
Docket NumberNo. 18093,18093
Citation323 P.2d 624,137 Colo. 224
PartiesFrank David MATHIAS, Plaintiff in Error, v. DENVER UNION TERMINAL RAILWAY COMPANY, a Corporation, Defendant in Error.
CourtColorado Supreme Court

Fred M. Muzzulla, Joseph F. Nigro, Denver, for plaintiff in error.

Yegge, Bates, Hall & Shulenburg, Denver, for defendant in error.

FRANTZ, Justice.

Mathias was unsuccessful in the trial of his claim against The Denver Union Terminal Company in which he sought to recover damages for injuries to his person and property resulting from alleged negligence. Dissatisfied with the findings and judgment of the trial court, he instituted proceedings in error in this court, seeking to have the adverse decision reversed.

The complaint was based upon an express or implied invitation extended to Mathias to come upon the premises of The Denver Union Terminal Company (hereinafter referred to as 'the defendant' or 'the depot'); Mathias' presence upon the premises pursuant to the invitation, and the negligence of the defendant by reason of which Mathias fell through a glass canopy attached to the building of defendant, resulting in his injuries. Besides the general issue, defendant filed the affirmative defenses of assumption of risk and contributory negligence.

The defendant, a corporation, owns and operates the railway depot in Denver, serving several railroads with trains entering and leaving Denver. For years reporters and photographers for the several news media in Denver had access to the depot for the purpose of obtaining photographs of celebrities and delegations arriving or departing by train.

Mathias was a photographer for The Denver Post, and on April 22, 1953 was assigned by his employer to obtain photographs of members of out-of-state Chambers of Commerce who wer expected to reach Denver that day. When he arrived at the depot with his equipment, he found a number of these members congregated near one of the exits.

He took some pictures of the group at this place, and decided he would attempt to get some overhead shots. To achieve his objective he ascended to the second floor of the depot and surveyed the situation from a number of windows. Each revealed some physical condition which barred an adequate view.

Having given up the idea of obtaining any overhead views, Mathias was in the act of returning to the ground floor when he was approached by some employees of the depot who, on learning of his mission, offered to assist him. Thereupon, an air-deflector was removed from a window by one of these employees and a desk was moved near thereto. Mathias was helped by an employee to the top of the desk, from which he stepped upon the window sill and began to ease his body down to the canopy beneath which the men whom he desired to photograph were standing; an employee then handed him his camera. Immediately thereafter the glass canopy upon which he intended to stand, gave way and he fell through the same to the sidewalk, sustaining personal injury and property damage.

The canopy was painted glass supported by ribs of steel, and had the appearance of metal. There were signs spaced on the canopy containing the following warning: 'Danger glass roof keep off.' Mathias denied seeing these warning signs. Although not large signs, it is not disputed that had he looked, he could have seen the one nearest the window out of which he descended upon the canopy.

At the conclusion of the evidence, briefs were submitted to the trial court, and in due course it found that Mathias was a licensee at the time of the accident and took the premises as he found them; that he stepped upon the canopy in disregard of an evident warning sign, thereby assuming the risk; that the depot was not negligent; and thereupon entered judgment against Mathias and for the depot.

The application by the trial court of the doctrine of assumption of risk arising from the relationship of property owner and licensee, as well as that of voluntary assumption of risk, to the facts as disclosed by this record, indicates a misconception of these doctrines.

Mathias entered the depot as an invitee, and so long as he used the areas of the depot common to passengers and those having an interest in the arrival or departure of passengers, he maintained his status as an invitee. Union Depot & R. Co. v. Londoner, 50 Colo. 22, 114 P. 316, 33 L.R.A.,N.S., 433; Denver & R. G. R. Co. v. Spencer, 27 Colo. 313, 61 P. 606, 51 L.R.A. 121. It is a matter of common knowledge that the various news media have an entree to the facilities afforded by depots for the arrival and departure of passengers whose names and activities are news-worthy. Atchison, T. & S. F. R. Co. v. Headland, 18 Colo. 477, 33 P. 185, 20 L.R.A. 822.

In that portion of the premises his status was that of an implied invitee. His presence there was for the purpose of giving publicity to the arrival of passengers, a matter in which the depot had an interest. 'It is well settled there that to come under an inplied invitation, as distinguished from a mere license, the visitor must come for a purpose connected with the business in which the occupant in engaged, or which he permits to be carried on there. There must be at least some mutuality of interest in the subject to which the visitor's business relates, although the particular thing which is the object of the visit may not be for the benefit of the occupant.' Plummer v. Dill, 156 Mass. 426, 31 N.E. 128, 129, 32 Am.St.Rep. 463; Gasch v. Rounds, 93 Wash. 317, 160 P. 962; Peregoy v. Western Maryland Ry. Co., 202 Md. 203, 95 A.2d 867; Bennett v. Louisville & N. R. Co., 102 U.S. 577, 26 L.Ed. 235; III Elliott on Railroads, 828.

But Mathias left the area used by passengers and...

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