Winscott v. Chicago & Alton Railroad Company
| Citation | 131 S.W. 749,151 Mo.App. 378 |
| Parties | C. E. WINSCOTT, Respondent, v. CHICAGO & ALTON RAILROAD COMPANY, Appellant |
| Decision Date | 07 November 1910 |
| Court | Court of Appeals of Kansas |
Appeal from Cole Circuit Court.--Hon. William H. Martin, Judge.
AFFIRMED.
Judgment affirmed.
W. S Pope, Scarritt, Scarritt & Jones and C. M. Miller for appellant.
(1) The court erred in not instructing the jury to return a verdict for appellant. Stickney v. Salem (Mass.), 3 Allen 374; Orcutt v. Bridge Co., 53 Me. 500; Kinney v Onsted, 113 Mich. 96, 71 N.W. 482; Kelley v Lawrence, 195 Mo. 75. (2) The court erred in giving instructions on behalf of respondent. Robertson v. Railroad, 152 Mo. 382; Railroad v. Railroad, 118 Mo. 625; Zwisler v. Storts, 30 Mo.App. 163; Fisher v. Lead Co., 156 Mo. 479; Casey v. Bridge Co., 114 Mo.App. 47. (3) The court erred in refusing instructions offered on behalf of appellant. See cases under point 1. (4) The court admitted incompetent evidence. (5) The judgment is contrary to the law and the evidence.
D. U. Herring, Harris & Hay and E. Silver for respondent.
(1) It is the duty of a railroad company to keep its station platform, and all portions of the premises reasonably near such platforms, where persons rightfully using same would naturally and ordinarily go, in a reasonably safe condition. Railroad v. Robinson, 130 S.W. 536; Stafford v. Railroad, 22 Mo.App. 333; Wood v. Railroad, 181 Mo. 433; Waller v. Railroad, 59 Mo.App. 410; McDonald v. Railroad, 26 Iowa 124; Railroad v. Brown, 78 Tex. 397. (2) Respondent was not a trespasser or mere licensee, but having gone to the station to meet his son whom he was expecting to arrive on the incoming train, he was in the class of those for whom the appellant was under obligation to maintain its station platform in a reasonably safe condition. Doss v. Railroad, 59 Mo. 27; Langan v. Railroad, 72 Mo. 392; James v. Railroad, 107 Mo. 480; Railroad v. Best, 66 Tex. 116; Gillis v. Railroad, 59 Pa. 129; Burbank v. Railroad, 11 L.R.A. 720; Woods Railway Law, pp. 1334, 1335; 10 Am. and Eng. Ency. Law (2 Ed.), p. 163. (3) Respondent being thus rightfully on the platform it was for the jury to say whether, in the light of all the evidence and the common experience of mankind, the use he was making of it at the time of his injury was such as the company should have anticipated would naturally be made of it, and, therefore, reasonable. Herdt v. Koenig, 137 Mo.App. 589; McGinley v. Trust Co., 168 Mo. 257.
This is a suit for damages for personal injuries alleged to have been caused by the negligence of defendant, a railroad company, in not maintaining the platform of its station at the town of New Bloomfield in proper repair. Plaintiff recovered judgment for eleven hundred dollars, and defendant appealed.
The railroad runs north and south through New Bloomfield and the station building and platform were on the east side of the main track. On account of the slope of the ground the east side of the platform north of the building was seven or eight feet high and rested on posts. The west side of the platform came close to the track and rested on the ground. A fence, or railing, beginning at the north end of the building was maintained along the east side of the platform. The part of this fence of present concern was that immediately north of the building. At that place the fence consisted of oak posts fastened to the edge of the platform and two horizontal pine boards each six inches wide and one inch thick nailed to the west side of the posts. The top board was three and one-half feet above the platform and the bottom board was midway between the top board and platform. The evidence of plaintiff tends to show that men and boys had sat on and leaned against the top board until its south end had torn loose from the post next to the building and near the middle post on both sides thereof the board had split so badly that while it retained its position and appeared sound at a casual glance, in reality, it was too weak to offer resistance to any kind of pressure or weight. There was a waiting room for passengers in the building but the part of the platform under consideration was near the place where passengers were received and discharged from passenger trains and in fair weather, it was used by persons who had business with such trains, as an "open air" waiting room. On a pleasant day in May, 1908, plaintiff, then sixty-two years old, went to the station a few minutes before train time to meet his son whom he expected to arrive on a regular passenger train. While waiting on the platform near the railing, he engaged in conversation with an acquaintance and, while thus occupied, they backed up to the railing. His companion leaned against the middle post and plaintiff lightly rested his hands on the top board just south of that post. Almost as soon as he touched the board, it gave way and, losing his balance, plaintiff toppled over backward and fell to the ground, sustaining severe injuries. Plaintiff denies that he seated himself on the board or even leaned his body against it. He did not know of its defective condition but witnesses introduced by him say that it had been in that condition a long time and that defendant's agent had received actual notice of the defect a week or two before the injury.
The facts we have stated are collected from the evidence of plaintiff. They are controverted in all material respects by the evidence of defendant, but for present purposes, a statement of defendant's version of the facts would be immaterial.
The principal contention of counsel for defendant is that the demurrer to the evidence should have been sustained. Though plaintiff did not go to the station for the purpose of becoming a passenger on one of defendant's trains, he was not a trespasser, nor can it be said that he was a mere licensee. A person has a right to go on station premises for the purpose of escorting an outgoing passenger or of meeting one whose arrival is expected. To such person, the railroad company does not owe the extraordinary care it owes a passenger, but it does owe him the duty of ordinary care, to maintain its station buildings and platforms in a reasonably safe condition for such uses. [Doss v. Railway, 59 Mo. 27; Langan v. Railway, 72 Mo. 392; James v. Railroad, 107 Mo. 480; Railroad v. Best, 66 Tex. 116, 18 S.W. 224; Gillis v. Railroad, 59 Pa. 129.]
But it was argued that defendant was not bound to erect and maintain railings for persons to sit on or lean against; that the railing was intended only to mark the platform limits and not as a place of rest and that if plaintiff desired to rest, he should have gone into the waiting room provided for that purpose. In support of this argument, we are cited to the following cases: Stickney v. Salem, 3 Allen (Mass.) 374; Orcutt v. Bridge Co., 53 Me. 500; Kinney v. Onsted, 71 N.W. 482; Kelley v. Lawrence, 195 Mo. 75, 92 S.W. 1158.
In Stickney v. Salem, a public street of Salem ran out towards the sea and ended at a seawall. The city had built a fence across the street end. Plaintiff's intestate, a Mr Stickney, walked to the end of the street with a companion and stopped at the fence to behold the view. Mr. Stickney leaned his arms lightly on the fence. It gave way on account of being in ill repair and he sustained a severe fall. The Supreme Judicial Court of Massachusetts held that the legal obligation of the city "of keeping a sufficient railing upon a highway is imposed only when it is necessary to mark the limits of that part of the road which persons may safely travel," and that Mr. Stickney was making an improper use of the railing, saying: ...
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