Yazoo & M. V. R. Co. v. Mansfield

• Decision Date: 18 May 1931
• Docket Number: 29351
• Parties: YAZOO & M. V. R. Co. v. MANSFIELD
• Court: Mississippi Supreme Court

134 So. 577

160 Miss. 672

YAZOO & M. V. R. Co. v. MANSFIELD

No. 29351

Supreme Court of Mississippi

May 18, 1931

Division A

1 NEGLIGENCE.

In order to imply "invitation," owner of premises must hold out allurement, and there must be adaptability of premises to purposes of visitor thereon.

2 RAILROADS.

Visitor going to caboose to arouse sleeping flagman held mere "volunteer."

3 RAILROADS.

Railroad owed to volunteer no duty, save not to willfully injure her.

4. RAILROADS.

Visitor falling from caboose platform while attempting to arouse flagman sleeping in the caboose which the railroad permitted him to so occupy for the purpose of taking him on a pleasure ride could not recover for injuries because chain did not span gap in guard rail.

5. CUSTOMS AND USAGES.

That plaintiff's companion visited caboose on one occasion, and that plaintiff did on occasion of injury, did not tend to establish custom binding upon railroad.

HON. W. H. POTTER, Judge.

APPEAL from circuit court of Hinds county, First district, HON. W. H. POTTER, Judge.

Action by Mrs. C. H. Mansfield against Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals, and plaintiff cross-appeals. Reversed and rendered.

Reversed, and judgment here for appellant.

May, Sanders, McLaurin & Byrd, of Jackson, and Chas. N. Burch and H. D. Minor, both of Memphis, Tenn., for appellant.

The railroad company owed Mrs. Mansfield no greater duty with reference to the safety of the caboose than it owed to the flagman. The relation of master and servant did not exist between the defendant and the flagman at the time of the injury. The flagman had completed his run and at the time of the injury was bent on affairs of his own. His and the railroad company's relation at the time was, at most, that of landlord and tenant. By the passive consent of the railroad company to use the seats in the caboose as a place to rest while the caboose was in the yards at Vicksburg and to use the stove of the caboose to make coffee and the ice box of the caboose to cool his soft drinks, the closest relation he could bear to the railroad company was that of tenant at sufferance. As such the doctrine of caveat emptor applies.

Jones v. Millsaps, 71 Miss. 10; Minneapolis Co-operative Co. v. Williamson, 38 Am. St. Rep. 476; Wilcox v. Hines, 66 Am. St. Rep. 785; City of Lowell v. Spaulding, 50 Am. Dec. 776; Griffin v. Jackson Light, etc., Co., 92 Am. St. Rep. 509.

Even had he been a tenant for years, the same rule would have applied.

Jones v. Millsaps, 71 Miss. 10.

Mrs. Mansfield was the guest of Flagman Ellis. As such she had no greater rights as against the railroad company than he had.

16 R. C. L. 1067.

It was not contended by the plaintiff that defendant extended her an actual invitation to visit the caboose. It was her contention that the invitation was by implication.

The term "invitation" within the rule that the owner of the property who has held out any invitation, allurement or inducement for others to come upon the property must keep his premises in a safe condition, imports that the person injured did not act merely for his own convenience and pleasure, and from motives to which no act or sign of the owner or occupant contributed, but that he entered the premises because he was led to believe that they were intended to be used by visitors or passengers, and that such was not only acquiesced in by the owner or person in possession or control of the premises, but that it was in accordance with the intention and design with which the way or place was adopted and prepared or allowed to be so used.

Alabama Great Southern Ry. Co. v. Godfrey, 156 Ala. 202, 47 So. 185, 130 Am. St. Rep. 76.

Invitation is inferred where there is some common interest or mutual advantage, while license is inferred where the object is mere pleasure or benefit to the person using it.

Robertson v. Y. & M. V. R. R. Co., 152 Miss. 333.

The railroad company furnished its flagman with a safe caboose and with a chain on the rear end of the platform, by which exit from the middle of the end of the platform could be closed or left open as occasion might require or as safety might dictate. The use of this appliance and when to close it and when to open it was left to the flagman. The railroad company cannot be held liable for the failure of its tenant (the flagman) to close the opening with a chain. It is uniformly held that the failure of the tenant to make use of safety appliances furnished by the landlord cannot render the landlord liable to those calling upon or visiting the tenant.

Texas Loan Agency v. Flemming, 44 L. R. A. 279; Eyre v. Jordan, 111 Mo. 424, 33 Am. St. Rep. 543, 19 S.W. 1095; 16 R. C. L. 1070-1; 16 R. C. L., page 1070; Colorado Mortgage & Investment Co. v. Margaret Giacomini, L. R. A. 1915B, page 369.

G. Q. Whitfield and Chalmers Potter, both of Jackson, for appellee.

Where a railroad company, for occupancy by its employees and their families, maintained dwelling houses fronting near to, and having the usual way of ingress to and egress from them over its tracks, and the children of its employees, residing in the houses, were within the knowledge of the company, accustomed to play on the tracks, they were while so playing more than mere licensees, and the company is liable for the death of one of them caused by mere negligence in the operation of its train.

Southern Railway Co. v. Bates, 69 So. 131; Butler v. Chicago, etc., Co., 155 Mo.App. 287; Young v. So. Railway Co., 97 Miss. 485, 52 So. 19.

The railroad company knew that Tew used the caboose at least temporarily as a domicile and was accordingly charged with the knowledge that he might have an occasional guest to whom it owed the duty of ordinary car in keeping the premises reasonable safe.

Hayes v. Sampsell, 274 Ill. 258, 113 N.E. 611, 195 Ill.App. 365.

The absence of the chain on the platform of the caboose considered, it was merely fortuitous that the one injured was an invitee rather than a servant or one who not in connection with business of the defendant company, being injured, is entitled to recover his damages from the offending company.

Sink v. Grand Trunk Co., 227 Mich. 21, 198 N.W. 238; I. C. R. R. Co. v. Cole, 113 Miss. 896, 74 So. 766; St. L. & S. F. Ry. Co. v. Stacy, 77 Okla. 165, 171 P. 870; Woods v. Mo. P. Co., 149 Mo.App. 507.

The wide open space in the back of the middle of the guard of the platform of the caboose in question was nothing less than nor other than "in the nature of a trap."

Tinkle v. St. L., etc., Co., 212 Mo. 445.

If, in response to a conductor's invitation, one goes on a car, and is injured by the negligence of the railroad company's servants, it is liable.

Flynn v. B. & M. Co., 204 Mass. 141.

Where premises are rented to several tenants, each occupying different portions, but all enjoying or using certain portions in common such as entrances, halls, stairways, etc., of the tenements or apartment houses, the landlord is held to be in control, and owes not only to his tenants, but those lawfully on the premises as the servants, guests and customers of the tenants, the duty to exercise reasonable care and diligence to keep such parts in safe condition, and for failure to do this he is liable to such servants, guests, etc., injured in consequence of his negligence, and without fault on their part.

16 R. C. L., p. 1072, sec. 591; Baltimore & Ohio Southwestern R. Co. v. Slaughter, 167 Ind. 330, 79 N.E. 186, 7 L. R. A. (N. S.) 597.

OPINION

McGowen, J.

In the lower court Mrs. Mansfield recovered a judgment for one thousand dollars against the Yazoo & Mississippi Valley Railroad Company for personal injuries received by her in consequence of a fall from the platform of its caboose parked at the time in its yards at Vicksburg. There is direct appeal here by the railroad company on the question of liability, and cross-appeal by Mrs. Mansfield on the inadequacy of the damages allowed in the court below.

On May 20, 1930, Mrs. Mansfield was in the city of Vicksburg visiting friends, Mr. and Mrs. Donahoe, and in attendance upon the bridge celebration held on that day. She and her friends were driving in a car on the streets of that city and invited Ellis, a flagman of defendant company, to join them. Later the husband of Mrs. Donahoe was in the car, and about eight o'clock in the evening, at the solicitation of Ellis, they went to the yards of the railroad company for the purpose of inviting Tew, a friend of Ellis, to go upon a pleasure ride out to the bridge. It was dark and Ellis borrowed a lantern from an employee and went to a caboose where Tew was sleeping in order to awaken Tew and have him join the party for a pleasure ride. Tew declined and the party proceeded to drive until about ten-thirty, when they again drove to the yards, and at Ellis' solicitation the entire party proceeded across eight or more railroad tracks to where the caboose was parked in which Tew was sleeping. Mrs. Mansfield and others went upon the rear platform of the caboose where they sought to arouse Tew, and failing to do so, Ellis was seeking to open the door when Mrs. Mansfield lost her balance and fell from the platform and was seriously and painfully injured. At both ends of the caboose there were platforms which had steps leading up on either side onto the platform, and on the rear there was an iron guardrail three or four feet in height running up to the platform on either side of the steps, and in the center there was a space of a foot and a half or two feet left open which was spanned by a chain fastened from one side of the guardrail to the other. It was the rule of the company that this chain spanning the guardrail should be...