Reasoner v. Chicago, R.I. & P.R. Co.

• Decision Date: 08 March 1960
• Docket Number: No. 49845,49845
• Citation: 101 N.W.2d 739,251 Iowa 506
• Parties: Ralph REASONER, Appellant, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY and Philip Reynolds, Appellees.
• Court: Iowa Supreme Court

Page 739

101 N.W.2d 739

251 Iowa 506

Ralph REASONER, Appellant, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY and Philip Reynolds, Appellees.

No. 49845.

Supreme Court of Iowa.

March 8, 1960.

I. Joel Pasternak, Connolly, O'Malley & McNutt, and Bradshaw, Fowler, Proctor & Fairgrave, Des Moines, for appellant.

A. B. Howland, B. A. Webster, Jr., John G. Fletcher, Des Moines, for appellees.

PETERSON, Justice.

In February 1958 plaintiff's occupation was that of taxi driver in Des Moines. February 11, 1958, about 12:45 A.M., plaintiff received a radio call in his cab to proceed to the Rock Island station to meet the train known as the Rocket arriving from the east. The station is located between Southwest 4th and 5th Streets. However, the train is so lengthy that passengers alight all the way from South 2nd Street to South 6th Street. Plaintiff parked his taxi on the east side of 3rd Street just north of the railroad tracks. There were two other taxis parked there.

The Rock Island track situation in the immediate area of its station is as follows: the main track for westbound trains; the main track for eastbound trains; the track known as house track immediately north of the main tracks; and east of 3rd Street and north of all above tracks, a spur track running from South 1st Street to 3rd Street and known as the Prouty spur. At the west end of the spur track is located what is known as a railroad bumper block. It is constructed of dirt and timber with three railroad ties on the east side of the block and is approximately three feet in height and ten feet in width, north and south. Its purpose is to stop any cars being switched on the spur if the engineer does not stop in time, or if the couplings between any cars do not work.

Plaintiff and the two other taxi drivers walked south on 3rd Street to about the middle of all the tracks and looked toward the east to see if the Rocket was coming. They saw no train so they started back toward the north. The two other taxi drivers returned to their taxis, but plaintiff walked over to the bumper block to answer a call of nature. He walked along the east edge of the block. The north edge was erected against the building immediately to the north of the spur track. Two or three feet east of the block was a preliminary block in the form of a railroad tie across the track.

When plaintiff walked south on the east edge of the block there was a baggage or mail car on the spur track from four to ten feet east of the bumper block. The testimony varied as to its exact location. There was another baggage or mail car farther east.

As plaintiff was approaching the north end of the block area the railroad tie came flying through the air and struck him in the chest, knocking him over. Immediately thereafter the baggage car, which had been parked on the track, struck him and pinned his leg under the stirup of the railroad car, which is an extension of the car itself. He was pinned there for about 30 to 45 minutes before they could get the car moved. As a result of this regrettable and tragic incident it became necessary to amputate his right leg above the knee.

Immediately prior to plaintiff's entrance on the spur track area a switch engine and switching crew consisting of the engineer and three flagmen were making up a train consisting of several cars, and the two cars on the spur track. They entered the spur track at South 1st Street and were moving west on the track as plaintiff was walking in on the east edge of the bumper block. A switchman with a lantern was about 120 feet east of him as he was stepping on the track, but plaintiff testified he did not see him.

The trial court submitted the case to a jury and verdict was rendered in plaintiff's favor in the sum of $43,000. Defendant filed motion for judgment notwithstanding the verdict, which was sustained by the trial court. In its order sustaining the motion the trial court held plaintiff was guilty of trespass on private property and was guilty of contributory negligence as a matter of law. From this order plaintiff has appealed.

In this appeal appellant alleges the trial court erred in sustaining the motion on the two grounds listed.

I. A railroad company, because of the nature of its business, is the owner of two classes of property. One class of property such as the passenger station, baggage room section for receiving baggage, station platform, the tracks on which trains arrive and depart and the area leading from the station to the passenger trains are public in nature. As to such areas the public has complete right of entrance. There are other areas such as switch tracks, roundhouses, repair shops, offices, ticket selling rooms, baggage storage rooms, etc., which are private property, and exclusively under the control of the company.

The nature of the entrance of a person upon the property of another can be divided into four categories. 1. Trespass. 2. Bare licensee. 3. Implied or express licensee. 4. Invitee. Mann v. Des Moines Railway Co., 232 Iowa 1049, 7 N.W.2d 45; Connell v. Keokuk Electric Railway & Power Co., 131 Iowa 622, 109 N.W. 177; Masteller v. Chicago, R. I. & P. Ry. Co., 192 Iowa 465, 185 N.W. 107; Thomas v. Chicago, M. & St. P. Ry. Co., 103 Iowa 649, 72 N.W. 783, 39 L.R.A. 399; Wagner v. Chicago & N. W. Ry. Co., 122 Iowa 360, 98 N.W. 141; Wilson v. Goodrich, 218 Iowa 462, 252 N.W. 142.

The significance of the various categories is as follows:

In Mann v. Des Moines Railway Co., supra, this court defined a trespasser as: 'Speaking generally, a trespasser is one who is not rightfully upon the land or property of another, but enters it without the consent, either express or implied, of the owner or occupier thereof. * * * It is uniformly stated that the owner or holder of the premises owes no duty to the unknown trespasser upon his property save that of not injuring him willfully or wantonly, and to use such reasonable and ordinary care as the circumstances demand, after his presence on the premises and his peril are known, to avoid injuring him.' [232 Iowa 1049, 7 N.W.2d 500] (Emphasis ours.)

From the same case we quote: 'A bare licensee enters the land or property of another at his own risk, and assumes the dangers existing or inherent in the property entered. We have said that it may be stated as a general rule of law that the owner or occupier of real property is under no obligation to make it safe or to keep it in any particular condition for the benefit of trespassers, intruders, mere volunteers or bar licensees, entering without express or implied invitation. If such a one be injured, no recovery can be had.'

The difference between a trespasser and a bare licensee is slight. Under certain conditions the obligation of a property owner as to a bare licensee is slightly more than that to a trespasser.

A licensee by implied invitation is defined in Connell v. Keokuk Electric Railway & Power Co., supra, as follows: 'A licensee by implied invitation is one who has been invited to enter upon the land either by the owner or occupier of the same by some affirmative act done by such owner or occupant, or by appearances which justify persons generally in believing that such owner or occupant had given his consent to the public generally to enter upon or to cross over his premises, and while such licensee is acting within the scope and limit of such implied invitation he has the lawful right to be where he is so invited.' [131 Iowa 622, 109 N.W. 178.]

In Wilson v. Goodrich, supra, an invitee is described as follows: 'An invitee to a place of business is one who goes there, either at the express or implied invitation of the owner or occupant, on business of mutual interest to both, or in connection with the business of the owners; while a licensee is one who goes on the property of another, either by express invitation, or with implied acquiescence, solely in pursuit or furtherance of business, pleasure, or convenience of the licensee.' [218 Iowa 462, 252 N.W. 144.]

Appellee contends plaintiff was a trespasser. The position of appellant is that he was an implied licensee. To sustain this position plaintiff's counsel contend that he came under a well-known and well-established exception to the general rule as to a trespasser.

The exception is that in certain cases pathways or other indications of usage have been established. This is accompanied by failure to raise objection by a railroad company or other owner of property to their use. This establishes a foundation for a person to go upon or cross such property as an implied licensee. Calwell v. Minneapolis & St. L. Ry. Co., 138 Iowa 32, 115 N.W. 605; Clampit v. Chicago St. P. & K. C. Ry. Co., 84 Iowa 71, 50 N.W. 673; Thomas v. Chicago, M. & St. P. Ry. Co., supra; Tarashonsky v. Illinois Cent. Ry. Co., 139 Iowa 709, 117 N.W. 1074. We will examine these cases to see whether the situation and circumstances surrounding plaintiff's injury are comparable to this exception.

In Calwell v. Minneapolis & St. L. Ry. Co., supra, plaintiff was stock by an engine of defendant. Defendant claimed he was a trespasser. Plaintiff claimed he was an implied licensee. The testimony shows without substantial conflict that a very large number of employees of the railroad traveled between the town and its shops southwest of the point of accident, using for such travel a well-worn path which crossed defendant's track at the point of injury. The testimony shows that the use of the path had been continuous for several years and that such use was well-known to defendant. There is no evidence tending to show any objection to such use. On that basis the case was submitted to the jury.

In Clampit v. Chicago, St. P. & K. C. Ry. Co., supra, plaintiff was going from his home to his place of employment and was using a well-established footpath crossing the railroad track used and occupied by defendant. The footpath was used daily by many persons, and had been used...