Seward v. Terminal R.R. Ass'n of St. Louis

• Citation: 854 S.W.2d 426
• Decision Date: 25 May 1993
• Docket Number: No. 75498,75498
• Parties: Paul Robert SEWARD, Respondent, v. TERMINAL RAILROAD ASSN. OF ST. LOUIS, Appellant.
• Court: United States State Supreme Court of Missouri

Page 426

854 S.W.2d 426 Paul Robert SEWARD, Respondent,
v.
TERMINAL RAILROAD ASSN. OF ST. LOUIS, Appellant. No. 75498. Supreme Court of Missouri,
En Banc. May 25, 1993.
Rehearing Denied June 29, 1993.

Page 427

Robery Ely, St. Louis, for appellant.

Michael A. Forst, Roberta Hogan, St. Louis, for respondent.

HOLSTEIN, Judge.

Plaintiff Paul Robert Seward entered an opening in an abutment on Eads Bridge, fell almost twenty feet to the rail deck below and was injured. The plaintiff brought suit against defendant Terminal Railroad. The jury found damages of $1,100,000 and assessed plaintiff's comparative fault at 64%. Judgment was entered for $396,000. The defendant appealed to the Missouri Court of Appeals, Eastern District. Following opinion, this Court granted transfer. Rule 83.03. The judgment is reversed.

The top level of Eads bridge is a highway for automobiles. Beneath the highway is a rail deck. At the point at which plaintiff fell, the rail deck is underground, and the abutment opening through which he fell is approximately on ground level, just a few feet below the roadway. Defendant was at all relevant times the lessee of the abutments and rail deck of Eads Bridge. Eads Bridge spans the Mississippi River at St. Louis.

On February 6, 1987, plaintiff was travelling by bus from California to Illinois when he stopped in St. Louis. At 6:05 a.m., plaintiff left the bus station to seek solace by the riverside. It was still dark outside. As he approached the river, he realized he was on the roadway level of the Eads Bridge. Since he wanted to walk down to the bank of the river, he backtracked off the bridge and began walking east within a few feet of the north side of the abutment. At this point, plaintiff was traversing a rubble strewn property owned by IBT Properties and leased by St. Louis Parking Company. To his right, in the abutment, there were rectangular openings designed for ventilation for train engines passing through the tunnel on the rail deck below. Feeling a need to relieve himself, plaintiff stepped into one of these openings for privacy. The opening is about three feet high and three feet deep. Its width is six feet, ten inches. Plaintiff was not aware of the precipitous drop just beyond the opening. He stooped down; his first step took him off the IBT property onto a ledge at the base of the opening. A second step took him through the opening, resulting in his fall.

The primary claim raised on appeal is that the defendant was entitled to a judgment notwithstanding the verdict because plaintiff's evidence was insufficient to establish a violation of a legal duty owed

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by defendant to a trespasser. ¹ In determining whether the evidence is sufficient to support the judgment, it is considered in the light most favorable to the party who prevailed on the verdict. Burnett v. Griffith, 769 S.W.2d 780, 783 (Mo. banc 1989).

Defendant raises two issues with regard to sufficiency of the evidence. First, defendant claims that plaintiff was a trespasser and, as such, defendant owed no duty of care to him. Second, defendant claims that this was an open, obvious danger and, therefore, there was no duty toward plaintiff, even if he was not a trespasser. Because the Court finds in favor of defendant on the first issue, the second issue need not be addressed.

Under Missouri law, it is the status of one going on the land of another which establishes the legal framework by which the court determines the duty of care owed by the possessor. The entrant is generally labeled a "trespasser," a "licensee," or an "invitee." A trespasser enters without consent or privilege; a licensee enters with consent but for his or her own purposes; and an invitee enters with consent and to the benefit of the possessor. Cunningham v. Hayes, 463 S.W.2d 555, 558 (Mo.App.1971).

Contrary to plaintiff's assertion here, he was not a gratuitous licensee. It is true that one can enter property in possession of another with the status of a licensee even without express permission. Gratuitous licensees include "those taking shortcuts across property or making merely permissive use of crossings and ways or other parts of the premises; loafers, loiterers, and people who come in only to get out of the weather." Prosser and Keeton on Torts, § 60, at 413 (5th ed. 1984); see, e.g., Porchey v. Kelling, 353 Mo. 1034, 185 S.W.2d 820 (1945); Twine v. Norris Grain Co., 241 Mo.App. 7, 226 S.W.2d 415 (1950). The nature of the permission which makes the plaintiffs licensees in these cases is the possessor's knowledge of and acquiescence to repeated entry. In this case, defendant was vigilant in its efforts to keep trespassers off the Eads Bridge. There is nothing on their part suggesting acquiescence. Thus, plaintiff was not a licensee, but a trespasser.

The general rule is that a possessor of land is not liable for harm caused to a trespasser by failure to put land in a reasonably safe condition. McVicar v. W.R. Arthur & Co., 312 S.W.2d 805, 812 (Mo.1958). Because the classifications of trespasser, licensee and invitee and the concomitant standards of care were developed before the present industrial and urban age, some have suggested that courts may freely transcend the common law...