Santa Fe P. & P. Ry. Co. v. Ford

CourtSupreme Court of Arizona
Citation10 Ariz. 201,85 P. 1072
Docket NumberCivil 858
PartiesSANTA FE, PRESCOTT AND PHOENIX RAILWAY CO., Defendant and Appellant, v. GEORGE S. FORD, Plaintiff and Appellee
Decision Date12 May 1906

APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. Edward Kent Judge. Reversed.

The facts are stated in the opinion.

T. J Norton, L. H. Chalmers, and U. T. Clotfelter, for Appellant.

Upon the facts shown by the record, plaintiff, while on defendant's caboose, was a bare licensee, to whom defendant owed no duty other than refraining from wantonly or willfully injuring him. 1 Kinkead Com. on Torts, sec. 323; 23 Am. & Eng. Ency. of Law, 2d ed., p. 736; St. Louis etc Ry. Co. v. Bennett, 69 F. 525, 16 C.C.A. 300; Kansas City etc. Ry. Co. v. Cook, 66 F. 115, 13 C.C.A. 364, 28 L.R.A. 181; Wilson v. Atchison, Topeka and Santa Fe Ry Co., 66 Kan. 183, 71 P. 282. The test is, whether the agents or servants of defendant could have possibly foreseen or anticipated that any act done or about to be done, or any word spoken by them or any of them, would result in injury to plaintiff. Chicago etc. Ry. Co. v. Elliott, 55 F 949, 951-953, 5 C.C.A. 350, 20 L.R.A. 582; Milwaukee etc. R. Co. v. Kellogg, 94 U.S. 469, 24 L.Ed. 257; 1 Thompson Com. on Law of Neg., sec. 28; Lauterer v. Manhattan Ry. Co., 128 F. 540, 63 C.C.A. 38; Motey v. Pickle M. & G. Co., 74 F. 755, 20 C.C.A. 366-369; Hoag v. Railroad Co., 85 Pa. St. 293-298, 27 Am. Rep. 653; Davis v. Chicago etc. Ry. Co., 93 Wis. 470, 57 Am. St. Rep. 935, 67 N.W. 16, 33 L.R.A. 654. "It is the universal doctrine that a licensee upon premises must himself assume all the risk of perils and dangers existing thereon or incident to the existing conditions thereof." 1 Kinkead's Com. on Torts, sec. 323; McCabe v. Chicago etc. Ry. Co., 88 Wis. 531, 60 N.W. 260; 23 Am. & Eng. Ency. of Law, 2d ed., p. 736. A permission to do a certain thing or act is no justification for the person's acting thereon so as to knowingly place himself in a position of danger. Railroad Co. v. Jones, 95 U.S. 439, 24 L.Ed. 506; Irish v. Northern Pac. Ry. Co., 4 Wash. 48, 31 Am. St. Rep. 899, 29 P. 845, 846; Cincinnati etc. Ry. Co. v. Carper, 112 Ind. 26, 2 Am. St. Rep. 144, 13 N.E. 122.

The business of unloading the ice was a joint undertaking, and whatever negligence there was upon the part of either of the Ford brothers is imputable to the other. Donnelly v. Brooklyn City Ry. Co., 109 N.Y. 16, 15 N.E. 733; Johnson v. Gulf etc. Ry. Co., 2 Tex. Civ. App. 139, 21 S.W. 274; Wosika v. St. Paul City Ry. Co., 80 Minn. 364, 83 N.W. 386; Bush v. Union Pac. R.R. Co., 62 Kan. 709, 64 P. 624; Prideaux v. City of Mineral Point, 43 Wis. 513, 28 Am. Rep. 558; Morris v. Chicago etc. Ry. Co., 26 F. 28; Payne v. Chicago etc. Ry. Co., 39 Iowa 523.

The doctrine of imputable negligence applied to defeat recovery whenever it appears to the court that the relationship of principal and agent existed. Omaha etc. Ry. Co. v. Talbot, 48 Neb. 627, 67 N.W. 599; Abbitt v. Lake Erie etc. Ry. Co., 150 Ind. 498, 50 N.E. 729.

"If the plaintiff sees, or by ordinary care could see, that the defendant has in fact negligently exposed him to the risk of injury, or will probably do so, he can no longer rely upon this presumption, and must use all the additional precautions on his own part, which a person of ordinary prudence would use in view of the circumstances as they are, and not as they ought to be." 1 Shear. & Red. on Neg., sec. 96.

In the case of Smith v. Centennial Eureka M. Co., 27 Utah 307, 75 P. 749-756, the court said: "In Pennsylvania Railroad Co. v. Aspell, 23 Pa. St. 147, 62 Am. Dec. 323, Mr. Chief Justice Black said: 'It has been a rule of law from time immemorial, and is not likely to be changed in all time to come, that there can be no recovery for an injury caused by the mutual default of both parties. When it can be shown that it would not have happened except for the culpable negligence of the party injured, concurring with that of the other party, no action can be maintained.' 1 Thomp. Com. Neg., sec. 186; Whart. on Neg., sec. 73; 2 Jaggard on Torts, 960; Ray on Neg. Imp. Dut. Pass., 669, 670; Texas and Pacific Ry. Co. v. Moore, 8 Tex. Civ. App. 289, 27 S.W. 962; New York etc. Ry. Co. v. Perriguey, 138 Ind. 414, 34 N.E. 233, 37 N.E. 976; Lewis v. Flint & P. Ry. Co., 54 Mich. 55, 52 Am. Rep. 790, 19 N.W. 744; Langridge v. Levy, 2 M. & W. 519; Carter v. Towne, 98 Mass. 567, 96 Am. Dec. 682; Crain v. Petrie, 6 Hill, 522, 41 Am. Dec. 765." Also, see, Green v. Los Angeles T. Ry. Co., 143 Cal. 31, 101 Am. St. Rep. 68, 76 P. 719, 727, 728; Gilbert v. Erie Ry. Co., 97 F. 747, 38 C.C.A. 408; Ward v. Maine Central Ry. Co., 96 Me. 136, 51 A. 947, 950; O'Brien v. McGlinchy, 68 Me. 552; Sego v. Southern Pac. R.R. Co., 137 Cal. 405, 70 P. 279; Cary Bros. & Hannon v. Morrison, 129 F. 177, 187, 65 L.R.A. 659, 63 C.C.A. 267.

A person is not justified in wholly relying upon the presumption that all other persons will at all times act with prudence and exercise due care. Shear. & Red. on Neg., sec. 92, pp. 138, 139; Beach on Cont. Neg., 2d ed., sec. 3839; 1 Thomp. Com. on Neg., sec. 190, pp. 184-186. This limitation upon the right of a person to indulge or act upon the presumption that others will act rightly and with due care is established in numerous authorities. Erie Ry. Co. v. Kane, 118 F. 223, 234, 55 C.C.A. 129; Railroad Co. v. Houston, 95 U.S. 697, 24 L.Ed. 542; Green v. Southern Cal. Ry. Co., 138 Cal. 1, 10, 11, 70 P. 926; Herbert v. Southern Pacific Co., 121 Cal. 227, 53 P. 651; Day v. Boston & M.R.R. Co., 96 Me. 207, 90 Am. St. Rep. 335, 52 A. 771; Gahagan v. Boston & M.R.R. Co., 70 N.H. 441, 50 A. 146, 55 L.R.A. 426; Giberson v. Bangor etc. R. Co., 89 Me. 337, 36 A. 400; Neininger v. Cowan, 101 F. 790, 42 C.C.A. 20; Carter v. Central Vermont Ry. Co., 72 Vt. 190, 47 A. 797; Sandberg v. St. Paul etc. R. Co., 80 Minn. 442, 83 N.W. 411; Louisville etc. R. Co. v. Webb, 90 Ala. 185, 8 So. 518, 11 L.R.A. 674.

The instructions wherein trial court attempted to state the conditions upon which the plaintiff would be entitled to recover, notwithstanding he was guilty of negligence which contributed to his injuries, are plainly erroneous in their statements of the law and inapplicable. Herbert v. Southern Pac. Co., 121 Cal. 227, 232, 53 P. 651; Georgia Pac. Ry. Co. v. Lee, 92 Ala. 262, 9 So. 231; Johnson v. Stewart, 62 Ark. 164, 34 S.W. 889; Richmond etc. Ry. Co. v. Yeamans, 86 Va. 860, 12 S.E. 946. The courts, almost without exception, hold that the principle in question applies only after defendant actually discovers plaintiff's situation or peril. Fritz v. Detroit etc. Ry. Co., 105 Mich. 50, 62 N.W. 1007; O'Keefe v. Chicago etc. Ry. Co., 32 Iowa 467; Krenzer v. Pittsburg etc. Ry. Co., 151 Ind. 587, 68 Am. St. Rep. 252, 52 N.E. 220; Houston City Ry. Co. v. Farrell, (Tex. Civ. App.) 27 S.W. 942; Texas Pac. Ry. Co. v. Lively, 14 Tex. Civ. App. 554, 38 S.W. 370; Hector Mining Co. v. Robertson, 22 Colo. 491, 45 P. 406; Blakesly v. Consolidated Ry. Co., 105 Mich. 462, 63 N.W. 401; Glazebrook v. West End Ry. Co., 160 Mass. 239, 35 N.E. 553; Tennis v. Interstate Consolidated R.R., 45 Kan. 503, 25 P. 876; Lockwood v. Belle City Ry. Co., 92 Wis. 97, 65 N.W. 866; Eastburne v. Norfolk Ry. Co., 34 W.Va. 681, 12 S.E. 819; Morrissey v. Bridgeport Traction Co., 68 Conn. 215, 35 A. 1126; Edgerly v. Union Street Ry. Co., 67 N.H. 312, 36 A. 558; Greengard v. St. Paul Ry. Co., 72 Minn. 181, 75 N.W. 221. The instruction to the jury that the conductor had authority to invite, permit, or request plaintiff to go upon the caboose violated paragraph 1408 of the Revised Statutes of 1901. The court had no right to assume that such authority existed or that the conductor was acting within the scope of his employment. Texas etc. Ry. Co. v. Mother, 5 Tex. Civ. App. 87, 24 S.W. 79, 80; International etc. Ry. Co. v. Anderson, 82 Tex. 516, 27 Am. St. Rep. 902, 17 S.W. 1039, 1040.

Alfred Franklin, and A.C. Baker, for Appellee.

An invitation is evident when there is a common interest or mutual advantage, while a license is evident when the object is mere pleasure or benefit to the person using it. Black's Accident Cases, sec. 13. Being in the car, under the circumstances he was rightfully there, and the railroad company and its servants owed him the same care to prevent injuring him as it would owe to a passenger on one of its coaches who had paid his fare and had a proper ticket to show for it. Kowalswaska v. New York Ry. Co., 25 N.Y.S 184, 72 Hun, 611; Ryan v. New York etc. R.R. Co., 115 F. 197; Beard v. Connecticut etc. R.R. Co., 48 Vt. 101. Plaintiff was justified in assuming that the defendant and its servants would not endanger him while at such work without warning or notice, and in giving his attention to his work he was not guilty of any contributory negligence. Chicago etc. Ry. Co. v. Goebel, 119 Ill. 515, 10 N.E. 369; Texas and Pac. Ry. Co. v. Volk, 151 U.S. 73, 14 S.Ct. 239, 38 L.Ed. 78; San Antonio etc. Ry. Co. v. Jazo, (Tex. Civ. App.) 25 S.W. 712. The notice or warning should be definite and sufficient. Illinois Cent. R.R. Co. v. Hoffman, Admx., 67 Ill. 287. The plaintiff is not called upon to anticipate any negligence on the part of defendant in running its engine back before the freight was unloaded. Jacobson v. St. Paul Ry. Co., 41 Minn. 206, 42 N.W. 932; Toledo etc. Ry. Co. v. Hauck, 8 Ind.App. 367, 35 N.E. 573; Central of Georgia Ry. Co. v. Duffey, 116 Ga. 346, 42 S.E. 510; Watson v. Wabash Ry. Co., 66 Iowa 164, 23 N.W. 380. Contributory negligence is an affirmative defense, which must be established by the defendant by a preponderance of the evidence. Chicago etc. Ry. Co. v. Price, 97 F. 423, 38 C.C.A. 239; Inland and Seaboard Co. v....

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