New Orleans & N. E. R. Co. v. Brooks

Citation165 So. 804,175 Miss. 147
Decision Date10 February 1936
Docket Number32022
PartiesNEW ORLEANS & N. E. R. CO. v. BROOKS
CourtUnited States State Supreme Court of Mississippi

Division B

1 NEGLIGENCE.

Landowner is liable for bodily harm to business visitor caused by dangerous natural or artificial condition thereon when owner knows, or by exercise of reasonable care could discover condition.

2 NEGLIGENCE.

If landowner is public utility, it should give adequate warning of dangerous natural or artificial condition to enable visitor to avoid harm without relinquishing any of services which he is entitled to receive.

3. RAILROADS.

Evidence held to establish that party approaching depot to obtain shipment was not mere licensee but business visitor to whom railroad owed duty of reasonable care, as against contention that he approached depot before business hours.

4. RAILROADS.

In business visitor's action for injury sustained when platform used by public as way of approach to depot broke because of rotten condition, negligence of railroad in maintaining platform held for jury.

5. RAILROADS.

Railroad knowing that public used rotten platform as way of approach to depot was under duty to use due care to see that platform was reasonably safe, notwithstanding railroad maintained alternative safe approach.

6. APPEAL AND ERROR.

Where business visitor suing for injury sustained because of defective platform at railroad depot testified that defective part of platform had been cut into pieces for convenience and placed in adjoining room to courtroom, and jury was retired during argument of motion to exclude evidence, and court, on sustaining objection, instructed jury to disregard testimony regarding matter, refusing to declare mistrial held not prejudicial error.

HON. HARVEY MCGEHEE, Judge.

APPEAL from circuit court of Pearl River county HON. HARVEY MCGEHEE, Judge.

Action by Harlan Brooks against the New Orleans & Northeastern Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Heidelberg & Roberts, of Hattiesburg, and Parker & Shivers, of Poplarville, for appellant.

According to the undisputed proof the plaintiff was at most a bare licensee as for whom, at the time in question, the defendant owed no duty except not to wantonly or wilfully injure him. Even if the plaintiff was an invitee, as to whom the defendant would owe a duty of exercising ordinary care for his protection, still, the evidence wholly failed to show that the defendant was guilty of even simple negligence proximately causing his injury.

The plaintiff by his proof wholly failed to establish that he went upon the property of the railroad company at a time when he had any right to transact any business with the company. On the contrary, his proof established without conflict that when he was on the property it was long before the regular office hours of the agent.

Even a passenger going to a passenger station for the purpose of taking passage on a passenger train would be a mere licensee at the depot if he went there more than a reasonable time before the scheduled arrival of the train, and the statute of Mississippi requiring passenger depots to be kept open both before and after the arrival of passenger trains only requires them to be kept open for one hour before the arrival of such a train.

Section 7080, Code of 1930.

It appears without dispute that the appellant had furnished a perfectly safe way for those having business with its agent to reach the agent's place of business, his office in the depot, and the rule is that where one goes to a railroad depot, either at the express or the implied invitation of the railroad company, and yet goes to a place to which he is not invited to go, then while at such place he ceases to be an invitee and becomes a licensee. Likewise it is true, therefore, that if one who would, otherwise be an invitee selects a different place on the premises of the invitor than the one provided therefor by the invitor, he is a licensee.

Louthian v. Fort Worth & D. C. Ry. Co., 111 S.W. 665; Price v. Pecos Valley & N.E. Ry., 110 P. 565; Murray Chevrolet Co. v. Cotten, 152 So. 657, 169 Miss. 521.

No negligence is shown.

The railroad company owed to the plaintiff in this case no higher duty than a master owes to a servant, and the rule is that where the master furnishes a safe method of doing work and the servant instead of using the means provided by the master selects another or different method or means, he cannot recover.

Ovett Land & Lbr. Co. v. Adams, 69 So. 499, 109 Miss. 740; Rose v. Pace, 109 So. 861, 144 Miss. 375; Buckeye Cotton Oil Co. v. Saffold, 87 So. 893, 125 Miss. 407; Stokes v. Adams-Newell Lbr. Co., 118 So. 441, 151 Miss. 711; Y. & M. V. R. R. Co. v. Metcalf, 84 Miss. 242.

The court below erred in failing to order a mistrial.

National Box Co. v. Bradley, 157 So. 91.

F. R. Home, of Jackson, Grayson B. Keaton, of Picayune, and Hall & Hall, of Columbia, for appellee.

Appellee was not a licensee but was an invitee. He approached the station at a time when he reasonably believed the agent was present for the transaction of business. He was oil a matter of business and using the means of entrance provided for the use of the public as a way of ingress and egress for business visitors. A possessor of land is liable for bodily harm to business visitors by reason of the defective condition of some portion of the premises where they are impliedly invited to come, provided such possessor knows, or by the exercise of reasonable care could discover, such defective condition.

Sections 343 and 347, A. L. I. Restatement of Torts; Lepnick v. Gaddis, 72 Miss. 200; Kress v. Markline, 77 So. 858, 117 Miss. 37; Western Union Tel. Co. v. Blakely, 140 So. 336, 162 Miss. 859; Allen v. Y. & M. V., 71 So. 386, 111 Miss. 267; Bennett v. L. & N. R. R. Co., 26 L.Ed. 235, 12 Otto (102 U. S.) 577; A. G. S. Ry. v. Godfrey, 47 So. 185; Sou. Ry. Co. v. Bates, 69 So. 131; L. & N. R. R. Co. v. Morgan, 51 So. 827; Watson v. R. R., 8 So. 770; R. R. Co. v. Watson, 10 So. 228; Elliott on Railroads (3 Ed.) sec. 1794.

Where two or more routes of ingress and egress are provided, both must be kept safe for use, and, in the absence of warning, a business visitor or invitee is entitled to use either route.

Cassady v. T. & P. Ry., 60 So. 15; Bell v. R. R. Co., 60 So. 1029; Sec. 343, A. L. I. Restatement Torts; I. C. R. R. v. Small, 74 So. 681, 113 Miss. 857.

The record shows abundantly that the sleeper supporting the platform was decayed and rotten. In fact, the company's witnesses admitted it. These facts made the determination of negligence a question for the jury.

So. Ry. v. Wiley, 88 Miss. 825, 41 So. 511; Y. & M. V. v. Slaughter, 92 Miss. 289, 45 So. 873; Sec. 365, A. L. I. Restatement Torts.

There was no error in the trial court's refusal to order a mistrial when appellee sought to introduce in evidence the rotten sleeper.

There was no error in the trial court's refusal to order a mistrial on account of a floor plank being exhibited to the jury.

Argued orally by Rowland W. Heidelberg for appellant, and by Lee D. Hall, for appellee.

OPINION

Anderson, J.

Appellee brought this action against appellant in the circuit court of Pearl River county to recover damages for an injury received by him in falling through a depot platform which he claims was negligently maintained by appellant at its station at Carriere. He recovered a judgment in the sum of one thousand five hundred dollars, from which appellant prosecutes this appeal.

Carriere is an unincorporated village through which appellant's line of railroad runs north and south. Appellant's depot there is located on the east side of the main line of railroad and consists of four rooms; the northeast room is the colored waiting room, the north-west the white waiting room, the next room south is the office for the agent, and the next south of that is the freight room. The entrance to the colored waiting room is on the north, to the white waiting room and to the agent's office on the west. There are no doors in the building on the east, except to the freight room. There was a platform the entire length of and adjoining the building on the east, and connected therewith was a cotton platform extending about fifty feet on the southend of the building. This platform had been out of use by appellant for some years because cotton was no longer shipped from the place, and after appellee's injury it was torn down. The entire platform to the south and the east was about four feet from the ground; the height of the floor of a freight car. On the west side and adjoining appellant's right of way is highway No. 11 running north and south; next, going east, are two side tracks, next appellant's main line; between that and the depot is a walk about fourteen feet wide made of crushed slag with concrete curbs and extending some distance north of the depot and to a point about fifty feet south thereof; to the east of the depot and adjoining appellant's right of way is another public highway running north and south, and between that and the depot is another side track. The situation therefore, with reference to the location of the depot, the main line, the side tracks, and the public highways is this: North and south public highway adjoining the right of way on the west, and going east, two side tracks, the main line, the slag walk, the depot, the platform attached to the depot on the east and the south, the side track, and then a public highway running north and south adjoining the right of way. A short distance to the north of the depot is a passageway called in the evidence indifferently a street or road; this is an east and west passage connecting the two public highways and the...

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