Woods v. The Missouri Pacific Railway Company
| Decision Date | 09 July 1910 |
| Citation | 130 S.W. 1123,149 Mo.App. 507 |
| Parties | W. A. WOODS, Appellant, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Bales Circuit Court.--Hon. C. A. Denton, Judge.
Judgment affirmed.
Silvers & Silvers and Silvers & Dawson for appellant.
(1) Plaintiff was in the stockyards of defendant delivering property that he had sold to one C. L. Smith, and which was to be shipped by Smith from the stockyards over defendant's road. Acting under Smith's direction plaintiff was putting the property into a particular pen when in the act of opening a gate, leading to such pen, he was injured. Plaintiff was thus engaged in a transaction in which he, Smith, and defendant were interested. He was lawfully on defendant's premises under an implied invitation to the public to deliver stock there for defendant's convenience and profit. Under such circumstances it was defendant's duty to keep the gate in repair and reasonably safe, or to warn customers of the danger if the gate was out of repair or unsafe. A failure to do this was negligence on part of defendant. O'Donnell v. Patton, 117 Mo. 18; Welch v. McAlister, 15 Mo.App. 492; Kean v Schoening, 103 Mo.App. 77; Carraway v. Long, 7 Mo.App. 595; Brock v. Transit Co., 107 Mo.App. 116; Lowenstein v. Railroad, 134 Mo App. 30; Moore v Railroad, 84 Mo. 481; Archer v. Railroad, 110 Mo.App. 349; Carlton v. Iron Co., 99 Mass. 216. (2) The defendant having constructed and maintained stockyards upon his premises did so for its own benefit and where a benefit accrues or is supposed to accrue an invitation to enter upon the premises exists. 29 Cyc. 454; Plummer v Dill, 156 Mass. 426; Railroad v. O'Malley, 107 Ill.App. 599. (3) The plaintiff being upon defendant's premises for a purpose connected with defendant's business, he was not a mere licensee.
Robert T. Railey and Scott & Bowker for respondent.
In this case the respondent was not at the respondent's stockyards upon any invitation, expressed or implied from the respondent, neither was he transacting any business with the respondent, but was there simply for his own convenience and that of his vendee, C. L. Smith. At most, he was a mere licensee and the respondent owed him no duty, except not to wantonly injure him or lay any trap for him. Wencker v. Railroad, 169 Mo. 592; Mann v. Railroad, 86 Mo. 347; Carr v. Railroad, 195 Mo. 214; Glaser v. Rothschild, 106 Mo.App. 418; 3 Elliott on Railroads, sec. 1250; White, Personal Injuries on Railroads, secs. 859, 860, 861, 862, 863, 870, 871, 872.
This is a suit for damages for personal injuries alleged to have been caused by the negligence of defendant. The trial court sustained a demurrer to the evidence and the cause is here on the appeal of plaintiff. The injury occurred at the live stock pens maintained by defendant at Foster, a station in Bates county on the Madison branch of defendant's railroad. The pens were on the station grounds, were in charge of the station agent, and were used in the shipment of live stock over defendant's railroad. A Mr. Smith, a shipper, was using the pens on the day of plaintiff's injury, for a shipment of live stock he intended to make and, afterwards, did make from that station. While his stock was in the pens, plaintiff attempted to deliver to Smith two hogs and a calf which he had sold and agreed to deliver to defendant's pens on that day. The evidence fails to show the kind of live stock Smith included in his shipment and it does not show that the stock sold by plaintiff was a part of the shipment or was bought by Smith for shipment over defendant's railroad. One of the inner gates of the pens, a tall, heavy, unwieldy gate, was out of repair from decay and neglect and while plaintiff was attempting to open it for the purpose of driving the stock into one of the pens, the gate fell and broke one of his legs.
As stated, the cause of action alleged in the petition is negligence of defendant and for present purposes we shall concede that had plaintiff been on the premises by the express or implied invitation of defendant, his evidence would be sufficient to support the charge that the proximate cause of his injury was the negligence of defendant in permitting the gate to remain in a defective and dangerous condition. This concession, which is made arguendo reduces the debatable ground of the case to a single question, viz: Was plaintiff, at the time of his injury, on the premises as an invitee or as a mere licensee of defendant? If he was there by...
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