Sink v. Grand Trunk W. Ry. Co.

• Decision Date: 10 April 1924
• Docket Number: No. 97.,97.
• Citation: 198 N.W. 238,227 Mich. 21
• Parties: SINK v. GRAND TRUNK WESTERN RY. CO.
• Court: Michigan Supreme Court

227 Mich. 21

198 N.W. 238

SINK

v.GRAND TRUNK WESTERN RY. CO.

No. 97.

Supreme Court of Michigan.

April 10, 1924.

Error to Circuit Court, Eaton County; Clement Smith and Philip T. Colgrove, Judges.

Action by Orange A. Sink against the Grand Trunk Western Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.

Fellows, J., dissenting.

H. R. Martin, of Detroit, for appellant.

Arthur E. Kidder, of Hastings, for appellee.

BIRD, J.

Plaintiff was engaged in teaming and trucking in the city of Hastings. On November 25, 1921, he drove his truck to Lansing and returned on the train. He left Lansing on defendant's midnight train for Charlotte. He arrived there about 1:15 a. m. When he left the train at Charlotte, he went into defendant's station and inquired of the agent in charge what time the Michigan Central train would go north to Hastings, and was informed that it would leave about 4 a. m. The Michigan Central station was over a block away. In the following he details that he did and said after he reached the station:

‘When I first got off the train and went into the station, I went to the desk of the ticket agent and asked him when the train went to Hastings, and he told me 4 something, and I said, ‘It is raining to beat the band, and I guess I will stay until pretty near train time and it may not be raining so hard,’ because I did not want to get my suit case wet, and he said, ‘Yes, that is all right.”

After remaining in defendant's station for a time, he inquired where he could get a lunch. The agent directed him to a nearby lunch counter. He secured his lunch and returned at once to the station. While on this errand he left his baggage in the station with the assurance from the agent that it would be safe.

Later, at his request, the agent directed him how to reach the toilet; he advised him what door to go out of, also the direction, and that there was a light burning in the toilet. He followed the agent's directions and reached the toilet without incident. When he returned, it was very dark, and he had difficulty in seeing the ground. A short distance from the toilet the walk or path split, and he followed the wrong path and fell into a pit 20 feet long, 10 feet wide, 4 1/2 feet deep, which had been excavated near the station for a new toilet and left unguarded, thereby greatly injuring himself.

Plaintiff brought this suit to recover for his injuries, counting on the negligence of defendant in failing to keep its station grounds reasonably safe for the use of its patrons. The jury awarded him a verdict.

1. Defendant's assignments raise two questions: (a) That plaintiff was a mere licensee, and defendant was not obliged to keep its premises reasonably safe for him. (b) That the verdict is excessive.

(a) The question whether plaintiff was an invitee, as claimed, or whether he was a licensee, is not real easy of solution. It is clear and is not disputed that when plaintiff was on defendant's train, while he was leaving the train and going to and into the station, and for a reasonable time after he entered the station, he was a passenger. When he remained beyond such reasonable time as was necessary to enable him to leave defendant's premises, did he then become a licensee or an invitee? If he became a licensee, the defendant was under no obligation to keep its station grounds safe for his benefit. He was bound to accept the premises as he found them. 33 Cyc. 806. If he were an invitee, then it became a question of fact whether defendant kept its premises in a reasonably safe condition for his use. 22 R. C. L. 919. In discussing the question as to who are invitees, Ruling Case Law observes that--

‘While the rule as to the duty of a railroad company toward a trespasser is, as has been seen, also applicable in the case of a bare licensee, one who goes on the premises of a railroad company to transact business with it or its agents or to transact business in the operation of the road, or who is there by invitation of the company express or implied, is lawfully there and the railroad company, like any other owner or occupant, owes him at least the duty of using reasonable or ordinary care for his safety. If a railroad company expressly invites or tacitly permits persons to be upon its premises, or in or about its machinery, the company owes to such persons the duty, not only not to injure them when their presence becomes known, but also to anticipate their presence at the time when or the place where such invitation or permission would probably bring about their presence, and to take such measures as ordinary prudence would require to prevent injury to them if they are in fact present.’ 22 R. C. L. 919.

After much examination of the authorities, we are of the opinion that plaintiff was at least an invitee on defendant's station grounds when he was injured. Among the items which have brought us to this conclusion are the following:

(1) Plaintiff's business relation with defendant began as a passenger and continued as such until a reasonable time had elapsed after entering defendants' station.

(2) On account of the inclemency of the weather, plaintiff asked for and was given express permission by the agent in charge to remain in the station for a time.

(3) The agent was informed as soon as plaintiff arrived that he was en route to Hastings, and that he was awaiting the arrival of the connecting carrier, and he extended to plaintiff the courtesy and conveniences which were doubtless reciprocal with both railroads in their daily exchange of passengers.

(4) Plaintiff was not in the position of a traveler who had reached his journey's end, but was in the position of a traveler who had reached a break in his journey and was obliged to remain at the station of defendant, or that of the connecting carrier. He was neither a trespasser nor a loiterer, nor was he remaining on defendant's premises solely for his own pleasure or amusement. He was remaining by reason of his former relation with defendant as a passenger and because of the express permission of the agent in charge.

It is argued, however, that the relation of invitee could not exist, because there was no mutual advantage in the relation. In a broad view there was a mutual advantage, an advantage to plaintiff in housing him from the storm and darkness, and an advantage to defendant in making passengers comfortable who chose to include this connection in their itinerary. Upon this phase of the law it is said:

‘As to whether one is an invitee, at least by implication, or a licensee, has been held by some authorities to depend upon the existence or want of a common interest or mutual advantage on the part of the carrier and one upon his premises. If such exists the person is inferred to be an invitee, whereas in the absence of such elements, and where one is upon the premises only for pleasure or for his own benefit, he is to be deemed a licensee. This principle cannot, however, be said to furnish an invariable test by which it may be determined in every case whether a person is upon the premises of the carrier under an implied invitation, but the existence of an invitation must be determined by the circumstances of each case.’ 4 R. C. L. 1050.

The adjudicated cases bearing on this question, which have come to our attention, are not numerous. The only case in this court, which has come to our attention, having any bearing on the present one, is the case of McKone v. Michigan Central R. Co., 51 Mich. 601, 17 N. W. 74,47 Am. Rep. 596. In that case plaintiff went to the Chelsea station to meet his wife. Her train was coming in as he reached the station. Being urged by a call of nature and no urinal being near, he stepped to a secluded spot from four to eight feet on defendant's ground away from where the passengers would alight, and fell into a deep hole and was injured. In a suit which followed the circuit judge directed a verdict for defendant. In reversing the judgment it was said, in part:

‘If we believe the evidence, which is undisputed, the plaintiff was not a trespasser. His occasion was not only lawful, but it was obviously within the license which the company had extended to the public. It is admitted in argument that had his...