Texas, O. & E. Ry. Co. v. McCarroll
| Decision Date | 21 September 1920 |
| Docket Number | 10368. |
| Citation | 195 P. 139,80 Okla. 282,1920 OK 309 |
| Parties | TEXAS, O. & E. RY. CO. v. MCCARROLL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
To make one a "licensee" upon the premises or property of another, it must be shown that he is there by permission or authority of the owner, or his authorized agent. The permission and authority amounting to a license must be expressly or impliedly granted, and mere sufferance or failure to object to one's presence upon another's premises is insufficient within itself to constitute a license, unless under such circumstances that permission should be inferred.
Neither sufferance, nor permission, nor passive acquiescence, is equivalent to an invitation.
The permission of a railroad company's night watchman for plaintiff to assist him in his work, and to ride on the pilot step of a steam engine, did not make plaintiff an invitee; it appearing that the night watchman had no authority to invite plaintiff to assist him or to permit him to occupy a place on the engine pilot.
The permission of the railway company's night watchman, in violation of the rules and regulations of the company and his general instructions, to a 15 year old boy to ride on the pilot step of an engine, operated by the watchman, did not make the boy a licensee.
Although a trespasser is a wrongdoer, and courts do not ordinarily aid him, nevertheless the owner of the premises (the railroad company in this case) owes him the duty not to wantonly and willfully injure him, and, if discovered in a perilous position, it owes him the duty to exercise ordinary care to avoid injuring him.
If a 15 year old trespasser, riding on the pilot step of an engine on his own volition or with permission of the night watchman in charge of the engine, for the purpose of signaling the watchman, was capable or apparently capable of exercising judgment and discretion and taking care of himself under the circumstances, it was not negligence for the watchman to run the engine.
While some authorities on the supposed analogy to the rule of the criminal law hold that a child between the age of 7 and 14 years is presumptively incapable of exercising judgment and discretion, and that after he has attained the age of 14, the contrary presumption prevails, it cannot be universally presumed that persons at a definite age, say 14 years, pass suddenly from incapacity to full capacity and discretion. There is no foundation for such a presumption, and the better rule is that it is a question for the jury to determine without regard to any arbitrary presumption, whether the particular person has capacity to understand the danger and ability to take care of himself under the circumstances.
The age, ability, and competency of a trespasser are immaterial when the master's servants discover him in a position of peril from which he cannot apparently extricate himself or take care of himself under the circumstances.
Whether or not it was negligence to start and run an engine with a boy between the age of 15 and 16 years standing on the pilot step is a question for the jury.
Appeal from District Court, McCurtain County; C. E. Dudley, District Judge.
Action by Harvey L. McCarroll, by his next friend, L. D. McCarroll against the Texas, Oklahoma & Eastern Railway Company, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.
Plaintiff commenced this action by his next friend against defendant to recover damages on account of its engine running over and cutting off his arm. The record shows that on September 17 1914, plaintiff was over 15 years of age; that defendant owned and operated a railroad in connection with its lumber camp; that after the trainmen had finished their day's work, it was the duty of the night watchman to clean out the engine grates and fill the tender with coal, put in water, and prepare the engine for service next day; the night watchman would run the engine down to the water tank and, after taking on water, bring it back to the yard; that he had no assistants and needed none.
Plaintiff testifies that he and the night watchman were friends; that the night watchman had boarded in his home while his father and mother lived near the spur track, and that at the time of the injury he was and had been boarding with the night watchman for about two weeks; that he had not had much education, but had been to school; that up to the time he came there, he had not had any experience with engines, machinery, and things of that kind; that after he began boarding with the night watchman he would work with and assist the night watchman on and about the engine; that sometimes he would go down to the engine after the night watchman left the house, and sometimes he would go with the night watchman; that the night watchman would generally take charge of the engine about 6 or 6:30 in the evening; that he had drawn the fire from the engine and made signals to the watchman when running the engine; that he had thrown the switches and coupled the cars; that the watchman had requested him to do these things; that he was not an engineer or fireman at that time and had no experience in those lines; that he remembered when he got his arm cut off; that he went with the watchman to get the water; that nothing was done to the engine before they started down to the water tank; that the water tank was about 300 yards north of the camp; that they had a lantern which he took along, but he does not remember who lit it; that as they went down for the water, they had a flat car attached to the engine, and that he was swinging on the flat car and also standing on between the engine and flat car; that it was about dark; that the engine and flat car were backed down to the water tank; that he connected the hose to run the water into the engine; that he also connected the hose with the water tank; that the watchman stayed in the cab of the engine; that another boy had the lantern, and that when they got the water in, he went around to get on the pilot step; that as he went around to get on the pilot step, he told the watchman that he would get on the pilot step and see if any cattle got on the track as they went through the camp; that he got on the pilot step for the purpose of signaling the watchman, as engineer, if anything got on the track; that he got on the right-hand side of the engine, on the pilot step; that the watchman made no objection to his getting on the pilot step; that the pilot step was made of sheet iron, about 8 or 12 inches long, and that he stood on it with his back towards the engine; that the engine started and went about 200 yards before the injury; that he was standing with his back towards the engine, facing the street; that while thus standing he saw a cow on the track ahead, and turned to signal the watchman or engineer, and as he turned, he lost his "hold someway there and slipped off"; that he was going to signal with his hand; that he knew how to make the signal; that he had learned to make signals from seeing the other fellows; that he was holding on to the handhold with both hands until he saw the cow and then let loose with one hand to make the signal, and when he did so, he swung around, and in order to keep from falling in front of the engine, he swung himself back, and fell on the outside so that the engine ran over one arm and cut it off; that he had been sawing timber and working with his father and made a dollar and six bits a day, being the same wages his father received; that he weighed at that time about 130 pounds; that he had great confidence in the watchman, and that they were friends; that he did not at that time realize that it was dangerous for him to be on the pilot step; that if the watchman had objected to him getting on the pilot step he would have gotten off; that when they were down at the water tank that evening, the other boy gave the signal with the lantern when to start; that he had before that given the same kind of signals; that before when they had been to the water tank, he had made signals to stop and what place to stop at; that he had made these signals to the watchman; that his object in hanging around the engine was because he had a curiosity to be about them and that he wanted to learn railroading and had told a good many people that he wanted to learn railroading; that once or twice when starting to go to bed at night (about halfway to bed, he says) he would go back and stay around the engine; that on the evening of the injury he was swinging on the front end of the flat car as they backed down to the water tank; that he was hanging on the end thus and was swinging on the car like a brakeman.
The evidence shows that the night watchman knew the boy was on the pilot step when he started the engine; that he ran the engine at the rate of about 2 1/2 miles an hour; that no defect in the roadbed or engine or pilot step caused the boy to fall off; that after the engine started, no act of the watchman in running the engine caused the boy to fall; that the watchman had no authority, actual or implied, to employ servants or assistants, and that no emergency existed justifying him in using or accepting the services of the plaintiff, that the act of the watchman in permitting the boy to be on or about the engine was in positive violation of the rules of the company and his general instructions.
At the close of the evidence, defendant, plaintiff in error, demurred to the evidence on the ground that plaintiff failed to establish a cause of action. The demurrer was overruled and a verdict returned in favor of the plaintiff.
Ames Chambers, Lowe & Richardson, of Oklahoma City, H. M. Kirkpatrick, of Idabel, and John S. Kirkpatrick, of ...
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