McConkey v. Oregon R. & Nav. Co.

• Decision Date: 21 April 1904
• Citation: 35 Wash. 55,76 P. 526
• Court: Washington Supreme Court
• Parties: McCONKEY v. OREGON R. & NAV. CO.

76 P. 526

35 Wash. 55

McCONKEY v. OREGON R. & NAV. CO.

Supreme Court of Washington

April 21, 1904

Appeal from Superior Court, Spokane County; George W. Belt, Judge.

Action by John McConkey against the Oregon Railroad & Navigation Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Barnes & Latimer and A. M. Craven, for appellant.

Cotton Teal & Minor, Lester S. Wilson, and Samuel R. Stern, for respondent.

HADLEY J.

This is an action whereby the plaintiff seeks to recover damages for injuries received from falling through a bridge on the line of defendant's railroad. The substantial allegations of the complaint are that on the 16th day of November, 1902 between the hours of 7 and 8 o'clock p. m the plaintiff was traveling over and upon the defendant's right of way and track from the town of Wardner, Idaho, to the town of Cataldo, Idaho; that said railway between said places is constructed and maintained through a deep and narrow canyon, with high mountains on either side, and the defendant uses and occupies very nearly all, if not all, the space in said canyon, with its railway line; that there was no road or passage way on either side of the railway track for the plaintiff or the public to use in going from one of said places to the other; that the most direct and usual route for pedestrians when traveling between said places was over said railway track; that said railway track had been used by the public generally as a thoroughfare for people on foot ever since the construction of the railway, without objection on the part of the defendant, and with its full knowledge and consent; that on said line of railway, and near to the town of Cataldo, the defendant maintains a bridge and trestle over a stream of water in said canyon; that said trestle is covered with ties laid a few inches apart, at right angles with the rails upon said track; that the general topography and rugged condition of the country on either side of said bridge is the same as heretofore described, and the only means of crossing said stream by foot travelers in going from Wardner to Cataldo was over said trestle and bridge; that all of the above-stated facts were known at the time by the defendant, and it had permitted the public to so use its track and bridge for a long period of time prior to the date of plaintiff's injuries; that when plaintiff had partially crossed over said bridge he fell into a hole between the rails, which had been previously left open and unguarded by the defendant; that ties at said place had been removed by defendant, leaving an open space about 30 inches in width, all without notice to the plaintiff, and of which he had no knowledge; that plaintiff was wholly without fault on his part, and without any means of knowing of said defect or danger; that he could not, by the exercise of ordinary diligence and care, have avoided or discovered the danger, the night being dark and the danger undiscoverable; that in consequence of the removal of said ties, and the negligence of the defendant in not immediately replacing same, the plaintiff fell through said opening, and down a distance of 20 feet upon the rocks below, whereby he was injured. It is further alleged that the defendant was negligent in not replacing said ties, in not warning plaintiff of the danger, in leaving the hole unguarded, and in not providing for proper inspection of the bridge at said place. The defendant demurred generally to the complaint, and the same was sustained by the court. Plaintiff elected to stand upon his complaint, refusing to plead further, and thereupon judgment was entered dismissing the action. The plaintiff has appealed.

It is assigned that the court erred in sustaining the demurrer to the complaint, and in entering judgment of dismissal. It is appellant's theory that his complaint does not show that he was a trespasser, but that, by reason of the averment that respondent had for a long time permitted the use of its track and bridge by pedestrians, and had consented thereto, he became a licensee. Upon the theory that his averments, as against demurrer, established the fact that he was a licensee, he urges that respondent owed him the duty of ordinary diligence and care to avoid injury. Appellant cites a number of cases, which he insists sustain the theory of respondent's liability here. Among the cases cited by him are the following: Cahill v. Chicago, M. & St. P. Ry Co., 74 F. 285, 20 C. C. A. 184; Hooker v. Chicago, M. & St. P. Ry. Co. (Wis.) 44 N.W. 1085; Hansen v. Southern Pacific Co. (Cal.) 38 P. 957; Thomas v. Chicago, M. & St. P. Ry. Co. (Iowa) 72 N.W. 783, 39 L. R. A. 399; Young v. Clark (Utah) 50 P. 832; Barry v. N.Y. C. & H. R. R. Co., 92 N.Y. 289, 44 Am. Rep. 377; Cassida v. Oregon Ry. & Nav. Co. (Or.) 13 P. 438; Roth v. Union Depot Co., 13 Wash. 525, 43 P. 641, 44 P. 253, 31 L. R. A. 855. Each of the above cases involved the liability of a railroad company for injuries resulting from the movement of a train which ran over a person upon the railway track. In each case the location of the injured person with reference to the train, together with the topography and environment, were such as involved the question of recklessness and wantonness on the part of the engineer or train operators. Whether one be a trespasser or a licensee, a railroad company cannot escape liability if it shall wantonly injure him when upon its track, and when his presence is discovered in time to avoid the injury by the exercise of reasonable care. The distinction between the relations of a trespasser and a licensee to the railroad company seems to be as follows: In the case of the former, the company, when moving trains, is under no obligation to keep a special lookout for him, but, if he is discovered upon the track in time to avoid injury by the exercise of reasonable care after such discovery, common humanity demands that such care shall be used. In the case of the licensee, the company, when moving trains, is charged with the additional duty of being in a state of expectancy as to the probable presence of persons upon the track at places where travel thereon is known to be customary and frequent. The care required in the case of the licensee, therefore, calls for both reasonable lookout in advance, and a reasonable effort to avoid injury after presence is discovered. Thus, in either case, the duty is the same after actual presence upon the track is discovered. In the above-cited cases discovery was made in each instance before the injury, and, without regard to whether the injured person was a trespasser or a licensee, wanton negligence was the controlling question in the case. We therefore believe the cases are not decisive of the one at bar. Here appellant was not run down by a train, and his presence upon the track was neither known nor discovered. It is true, it is alleged that respondent consented to the use which was being made of the track and bridge, but the allegations, taken together, show that it was such consent as may have been merely implied because no asserted objection or actual effort to prevent such use had been made. Assuming, however, that appellant was a licensee by reason of the fact that respondent had never actually prohibited him and others from traveling there, what new obligation did that fact create on the part of respondent under the peculiar facts of this case? If he was a licensee, then it is true respondent, as we have already seen, was under...