St. Louis & S. F. Ry. Co. v. Ray
| Decision Date | 19 December 1916 |
| Docket Number | 7010. |
| Citation | 165 P. 129,65 Okla. 214,1916 OK 1049 |
| Parties | ST. LOUIS & S. F. RY. CO. ET AL. v. RAY. |
| Court | Oklahoma Supreme Court |
Rehearing Denied May 29, 1917.
Syllabus by the Court.
Where a cause of danger to public travel exists on private land adjoining a public highway, the liability of the owner of the land for the injury from it depends on its dangerous character with reference to public travel, rather than to its exact location. The question whether it endangers public travel is as a general rule one of fact and not of law.
Where a railroad company leases a part of its right of way that is open and unfenced, adjoining a public street in a city, for the purpose of a grain elevator, and the tenant in erecting the elevator excavates a pit, 15 by 30 feet and 6 to 12 feet in depth, and the elevator is destroyed by fire, and the pit is allowed to remain unguarded, and the railroad company makes use of the leased ground adjoining the pit for the purpose of loading and unloading freight from its cars, and the teams and wagons in moving the freight make a plain and distinct roadway leading from the public street over onto the right of way, and near the pit, and while the pit is open and unguarded the railroad company executes a second lease to the tenant for the same purpose as the first, and the plaintiff a stranger in the city, passing along the public street upon a dark night, is misled by the roadway leading therefrom onto the right of way, and following the same, without fault on his part, falls into the pit and is injured, held, that both the railroad company and its tenant were negligent in allowing the pit to remain open and unguarded, and whether or not this negligence was the proximate cause of the injury complained of was a question of fact for the jury, and its finding, being supported by the evidence, is conclusive on this appeal.
Commissioners' Opinion, Division No. 2. Error from District Court, Noble County; A. H. Huston, Judge.
Action by John W. Ray against the St. Louis & San Francisco Railway Company and E. J. Miller. Judgment for the plaintiff, and defendants bring error. Affirmed.
W. F Evans, of St. Louis, Mo., and R. A. Kleinschmidt and E. H Foster, both of Oklahoma City, for plaintiff in error Railway Co.
P. W Cress, of Perry, for plaintiff in error Miller.
Henry S. Johnston, of Perry, and Horace Speed, of Tulsa, for defendant in error.
This action was for damages on account of personal injuries received by the defendant in error, John W. Ray, by falling into a pit on the land of the railway company, made by its tenant, Miller. There was a trial to the court and a jury, and a verdict returned for the plaintiff against both of the defendants, upon which judgment was rendered, and from which both the railway company and its tenant appeal.
It appears that: The St. Louis & San Francisco Railway Company built into the city of Perry, after the city was located and established, and that the company building the road acquired as a part of its right of way the property in block 14 of the city, and that at the intersection of Fifth and D streets, the property of the railroad company extended to Fifth street. There was no sidewalk or fence along the east side of Fifth street marking the line between the street and the company's property, and the right of way at that point remained open and unfenced. In 1904 the St. Louis & San Francisco Railroad Company leased a portion of its right of way in block 14 to E. J. Miller for the purpose of erecting a grain elevator thereon. In the construction of the elevator a deep pit was dug on the lots some 30 feet in length by 15 feet in width and varying in depth from 6 to 12 feet, walled with stone, and unevenly paved at the bottom with stone and cement. That in 1908 the elevator erected on this lot was entirely destroyed by fire, and from that time to November 22, 1911, the date of the accident, this pit remained exposed and unguarded. In 1909 Miller's lease expired, and the railroad company executed a new lease for the same purposes and for a term of five years. A switch had been constructed by the railroad company along the side of the elevator, and remained after the elevator was destroyed, and was used by the railroad company and its patrons for receiving and discharging freight. There was a board culvert over the gutter on the north side of D street, where it was intersected by Fifth street, and a plain wagon track passing from the culvert in a northerly direction from Fifth street over to the railroad property and near the switch, circling around to within 6 or 10 feet of this excavation and then led back to the culvert on Fifth and D streets.
John W. Ray, the defendant in error, was a citizen of Guthrie, Okl. One of his daughters resided at Perry on Fifth street, about a block and a half from the Santa Fé Railroad Company's passenger station. On the night of November 22, 1911, Ray, returning from Kansas, stopped at Perry to visit his daughter. He was an old man near 80 years of age. He had two hand grips, and undertook to walk from the station to his daughter's house. He passed up D street until he came to Fifth and turned up Fifth street, passed over the culvert, and, thinking he was proceeding up Fifth street, followed the track made by wagons hauling freight to and from the cars on the switch of the railroad company, and followed the track until it turned from the pit toward Fifth street. There he stopped and set down his grips, and, seeing a light across in a northerly direction, which he thought was an electric light in front of his daughter's house at the corner of Fifth and E streets, advanced toward it, taking three or four steps, fell into this pit, and was injured.
It was the theory of the plaintiff that both the railroad company and its tenant, Miller, were guilty of negligence in permitting this pit or excavation to remain open and unguarded, and that the path or roadway leading from the street to the property was an invitation or lure to the plaintiff, or any other traveler on the street, to pass upon this property, and in so doing they were liable to fall into the pit and be injured, and that such an accident was liable to happen, and ought to have been contemplated by the railroad company and Miller, and that it was negligence not to do so, and such negligence was the proximate cause of his injury. Both the railroad company and Miller denied liability, and maintained that this was private property, and that they had a right to dig the pit thereon and maintain it as they pleased, and that Ray was a trespasser on the property, and that they were in no way liable for his injury. The railroad company as well as Miller interposed a demurrer to the petition, and again demurred to the plaintiff's evidence. These were overruled by the court, and the ruling was assigned as error by each of them.
It seems that the petition stated the necessary elements of actionable negligence against each of the defendants. It charged that Miller made this pit or excavation on this lot, and left it unguarded and exposed, and that the railroad company, by inviting its patrons to use the lot for the purpose of receiving and loading freight into the cars upon its switch thereon, made the roadway from Fifth street over and across the lots, and by reason of this roadway, Ray, as a traveler on the street, mistook it for the street, and in so doing fell into the unguarded pit and was injured, setting out the extent of his injuries in detail. He charged the defendants owed him the duty to have put up a fence or a guard around this excavation, and that they each failed to discharge this duty, and that his injuries proximately resulted therefrom.
The evidence of Ray as to how he happened to be injured is corroborated by other witnesses and supports the allegations of the petition. After testifying that it was late at night and very dark when he left the Santa Fé train at the passenger station, he testified as follows:
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