St. Louis & San Francisco Railroad Company v. Caldwell
| Decision Date | 24 January 1910 |
| Citation | 124 S.W. 1034,93 Ark. 286 |
| Parties | ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. CALDWELL |
| Court | Arkansas Supreme Court |
Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; affirmed.
Judgment affirmed.
W. F Evans and B. R. Davidson, for appellant.
1. The copy of the deed from Kansas & Texas Coal Company to Little Rock & Texas Railway Company was inadmissible because (a) no foundation was laid for its introduction--no showing of effort to obtain the original deed, nor why the original was not produced. Kirby's Dig. §§ 756-757; 76 Ark 400; Id. 461; 77 Ark. 244. (b) The blue print attached to the original deed showing the right-of-way conveyed, and an essential part of the description, was not copied. (c) It was error to permit appellee's attorney to state to the jury when he read the deed, himself not being under oath, that the section 13 referred to therein embraced the lands in controversy. III Mich. 663.
2. Appellant was operating the road under a lease. The coal pit was excavated and the embankment was erected by the Kansas & Texas Coal Company years before. The lessee is not responsible for the improper construction of a permanent structure of this character. 59 Ark. 312; 11 Am. & Eng. R Cas., 458; 31 A. 637; 51 S.E. 699.
3. Appellant laid no claim to the land outside of the embankment, it was unnecessary for the operation of the road, and appellant was not required to go on lands owned by the lessor and fill pits that may have been dug by the lessor, even if the lands had been shown to belong to it. But for more than twenty years no ownership had been exercised over the land, either by the lessor or lessee. 70 Ark. 389; 69 Ark. 104; 77 Ark. 387; 90 Ark. 178.
4. If it be true that appellee was allowed as a licensee to walk near the railroad track, there was, nevertheless, a walk sufficiently wide and perfectly safe provided for that purpose. If he voluntarily wandered out into an unsafe place, the appellant is not liable for resultant injuries. 2 N.H. 392; 86 F. 297; 27 A. 464; 53 N.E. 799; 51 N.E. 521; 14 Am. Rep. 686; 5 Id. 295; 48 Am. Rep. 211; 56 Am. Rep. 241. As a licensee, appellant owed him no duty except not to wantonly injure him. 7 F. 78; 70 Ark. 389.
John W. Goolsby and Mechem & Mechem, for appellee.
1. As a rule, railroad companies are bound to keep in a safe condition all portions of their platforms and the approaches thereto, as also all portions of their station grounds reasonably near to the platform, where passengers or those who have purchased tickets with a view to take passage on the cars, or to debark therefrom, would naturally or ordinarily be likely to go. 46 Ark 182.
2. The copy of the deed was admitted to show the width of the right-of-way and not to show title. It was not necessary to lay a foundation for its introduction. 23 Am. Dec. 140; 4 Cranch, 398.
Appellee sues to recover damages resulting from personal injuries received by falling into an unprotected hole or pit in one of the approaches to the railroad station of appellant at the town of Huntington, Arkansas. He recovered a verdict for damages, and appellant has brought the case here for review.
It is alleged in the complaint that appellant, for several years prior to the time appellee was injured, negligently permitted a large and deep hole or excavation with perpendicular sides to remain open and unprotected on its right-of-way in close proximity to the principal approach to the station at Huntington; that said approach was along and over the right-of-way, and was then being used, and had for several years been used, by the traveling public, with the knowledge and consent of appellant, in going to and from the station; that appellee was unacquainted with the approach and hole, and that in debarking from a train and going from the station in the night time he followed the lead of other passengers along the approach and, without negligence, stepped or fell into the hole, and was injured. Appellant in its answer denied all the allegations of the complaint, and pleaded that appellee's injury resulted from his own negligence.
The evidence adduced by appellee was sufficient to establish the following state of facts: At Huntington, Arkansas, there is a passage way or approach along the railroad right-of-way parallel with the tracks, running from one of the principal streets to the railroad station. This was openly and generally used by passengers going to and from the station and had been so used for many years. The tracks and approach were on a high dump. There had originally been a spur track built by a coal mining company from the main track of the railroad to a coal mine; but the mining company had many years before abandoned the track, and a part of it had been used by the railroad company as a spur track, running parallel with the main track. The approach runs along between the spur track and edge of the dump. The hole was made by the mining company, being called a strip pit, and is fifty to one hundred feet wide, and twelve to twenty feet deep, running parallel with the tracks. It is about seventy-five feet from the station and twelve feet from the edge of the track--the approach or passage way running between. The hole was unprotected, and the side next to the approach, was perpendicular. On the night in question, appellee debarked from the passenger train, and started, with other passengers, to go along the passage way to reach the street. ...
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