St. Louis, Iron Mountain & Southern Railway Company v. Pyles

• Decision Date: 29 June 1914
• Docket Number: 70
• Citation: 169 S.W. 799,114 Ark. 218
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. PYLES
• Court: Arkansas Supreme Court

169 S.W. 799

114 Ark. 218

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. PYLES

No. 70

Supreme Court of Arkansas

June 29, 1914

Appeal from White Circuit Court; J. M. Jackson, Judge; reversed.

Judgment reversed and cause dismissed.

E. B Kinsworthy, P. R. Andrews and W. G. Riddick, for appellant.

1. Appellee was a bare licensee. There is nothing to indicate an invitation to an employee to use the path. The use was merely permissive, and those who used the path, took the privilege with its concomitant peril. 103 Ark. 226; 83 Id 300; 33 Cyc. 758; 112 Ga. 668; 122 Ia. 360; 66 Oh. St. 509; 90 Am. St. 602; 3 Elliott on Railroads, §§ 1251-1303; 4 Id., § 1579.

2. A railway company is under no duty to repair its tracks or keep its yards in any particular condition for trespassers and licensees; they assume the risk. 2 Thompson on Negl., § 1760; Ib., § 1848; 106 Ark. 390; 141 Mich. 75; 33 Cyc 761.

3. The coal was not the proximate cause of the injury. 84 Ark. 270.

S. Brundidge, J. W. & J. W. House, Jr., for appellee.

1. There was an implied, if not a positive, invitation for appellee to board this particular train at this particular place. He had a pass, was an employee, and is entitled to recover. 96 Ark. 638; 89 Id. 103; 85 Id. 326; 81 Id. 187. This pathway was universally used and the presumption is that the railroad company acquiesced. 79 Ark. 157; 103 Ark. 226; 90 F. 783; 45 Oh. St. 11; 12 N.E. 451; 38 A. 236; 41 A. & E. R. Cases (O. S.) 501; 69 Vt. 555; 97 S.W. 1122; 193 F. 603; 126 Ill.App. 601; 133 N.W. 672; 132 S.W. 992; 4 Hun. 760; 3 Am. Rep. 628; 57 Id. 446; 88 S.W. 192; 27 Id. 27; 64 N.E. 582; 85 Ky. 224; 16 Utah 42; 43 S.E. 39; 36 C. C. A. 361.

2. Where a person, by reason of some peculiar circumstance, has his attention directed to some other object and momentarily forgets the danger incident to travel, that does not amount to negligence per se, and is a question for the jury. 99 Ark. 254; Am. Ann. Cases, 1913, D. 37; 183 N.Y. 506.

3. The mere posting of a sign is not sufficient. 135 Mass. 352; 163 Id. 330; 65 Ill.App. 649.

OPINION

MCCULLOCH, C. J.

The plaintiff was struck, knocked down and seriously injured by one of the defendant's freight trains in the railroad yards at Gurdon, and he instituted this action to recover damages on account of such injuries.

He was going down a pathway between the main track and a sidetrack for the purpose of boarding a train, when he stumbled over a pile of coal, about two feet high, in the pathway, and fell under the slowly moving freight train on the main track, and one of his legs was cut off just below the knee, and the other foot was cut through just about the instep. This occurred about midnight. The pile of coal which obstructed the pathway fell from the coal chute while the men were placing coal in the engines. It was about 2,500 feet south of the station at Gurdon, and the freight train had stopped at the coal chute for the purpose of taking on coal.

Plaintiff was employed by defendant railway company in the supply department, his duties being to travel with the supply cars and distribute oil. He had been to El Dorado with his oil cars, and returned to Gurdon enroute to Argenta. It was Saturday night, and he was to join the oil cars at Argenta on Monday morning, to go to McGehee, on another division of the road. The foreman of his department also accompanied the cars, and plaintiff obtained permission of the foreman to leave the oil cars at Gurdon and make his way back to Argenta that night on another train without waiting for the cars to be transported the next day. Plaintiff, after getting his lunch at an eating house near the station at Gurdon, saw the freight train stop at the coal chute, and decided to go down there and board the caboose to ride to Little Rock. He had a pass which permitted him to ride on all kinds of trains, including through freight trains. He started down the track hurriedly to reach the caboose before the train moved, and when he got nearly to the engine, the train started, and he quickened his gait and was going, as he describes it, "in a trot," when he stumbled over the pile of coal and fell. The train was going very slowly when plaintiff fell, and his feet were thrust under the train and the wheels struck him before he could extricate himself.

The evidence tends to show that the pile of coal fell from the chute and had accumulated there for a day or two. There was a space of nine feet between the main track and the passing track, and there was a well beaten path along there which was used by employees, and also by the public to some extent. There was a sign there, erected by the company, warning trespassers from the tracks and right-of-way.

Plaintiff testified that he had been to Gurdon a time or two before, and had seen employees and others walking along that path. He stated also that he had seen employees get off trains down at the coal chute and walk up to the depot along that path.

The only charge of negligence against the company is in permitting the pile of coal to accumulate in the path and in allowing it to remain there as an obstruction to those who attempted to use the path.

Plaintiff had the right to ride on freight trains, and it can not be said that he was not traveling on the business of the company in returning from Gurdon to Argenta. But he was not required to travel on that particular train. He was not acting under the immediate command of his superior when he undertook to board the train. While he had the right to board the freight train wherever it might be found for the purpose of riding on the company's business, the pass which enabled him to ride on through freight trains was not an invitation to board them wherever found. In other words, his right to board freight trains wherever found did not imply an obligation on the part of the company to furnish him a safe place and opportunity to board them. If he saw fit to board a freight train away from the station at a tank or coal chute, he did so at his own risk, unless the servants of the company were guilty of some negligence in the operation of the train which resulted in his injury. So, the fact that the plaintiff was going down the path for the purpose of boarding the train adds no strength to his cause of action, and his right to recover must exist, if at all, upon the obligation of the company to keep the path clear for the benefit of any one who saw fit to use it.

Now, the evidence establishes the fact that notwithstanding the warning posted by the company, the path was a well beaten one, and was frequently used...