Opinion
No. 32895.
January 3, 1938.
1. RAILROADS.
Where place where flag station was located and through which freight train was running at time freight cars were derailed and which ran into station building thereby injuring plaintiff who was waiting to see a new train pass, was not an incorporated town or village, negligence of railroad could not be predicated on ground that train was running at unlawful or reckless rate of speed.
2. RAILROADS.
Where plaintiff, hearing rumor that new train would run past flag station, went to station to see train, and possibly to ride thereon, and while waiting was injured as result of derailment of freight cars which struck station building, railroad owed plaintiff no duty to post fact that the new train was not to run, where it had never run and was not scheduled to run, as against his contention that there was no posting of hours of arrival and departure of train so that he could determine when to be there (Code 1930, section 7080).
3. RAILROADS.
Where some of freight cars were derailed as result of switch being opened, and ran into flag station, thereby injuring plaintiff, waiting at station, railroad had no duty to constantly watch track to insure its safety for purpose of avoiding unforeseen accidents.
4. NEGLIGENCE.
To recover for an injury to a person or property by reason of negligence or want of due care, there must be shown to exist some obligation or duty toward plaintiff which defendant has left undischarged or unfulfilled.
5. RAILROADS.
The prima facie presumption of negligence which arises under statute providing that injury to person or property by railroad is prima facie evidence of want of skill must yield to proven facts (Code 1930, section 1580).
6. RAILROADS.
Where plaintiff was waiting at flag station expecting to see a new train which, however, was not scheduled to run, and while he was standing near station house a through freight train arrived and several freight cars were derailed and they demolished station building and plaintiff was injured by flying timbers, and derailment was caused by spur track switch being opened, but there was no evidence that any railroad employee was responsible therefor and company kept no agent at station, and switch was securely locked when examined by foreman on previous afternoon and spur track was not used in meantime, the derailment was an "accident" which could not have been foreseen by exercise of due care, and railroad was not liable (Code 1930, section 1580).
APPEAL from the circuit court of Leake county. HON. D.M. ANDERSON, Judge.
Flowers, Brown Hester, Robert Burns, Jr., and F.W. Bradshaw, all of Jackson, for appellant.
The motion of appellant to exclude the evidence of appellee, made after appellee had rested his testimony and evidence, should have been sustained because the testimony and evidence showed that appellee was not at the station of appellant at Tuscola as an invitee, but at most as a bare licensee, and that as a licensee appellee had no right of action against appellant.
Section 7080, Code of 1930; Norfoldt W. Ry. v. Wood, 99 Va. 516, 37 S.E. 846; Gillis v. Penn. R. Co., 59 Penn. 129, 98 Am. Dec. 317; I.C.R.R. v. Arnola, 29 So. 768.
The rule of liability to a bare licensee is the same as to a trespasser.
Y. M.V.R.R. Co. v. Cox, 132 Miss. 564, 97 So. 7; I.C.R. Co. v. Arnola, 29 So. 768; Railroad Co. v. Harrison, 61 So. 655, 105 Miss. 18; L. N.R.R. Co. v. Williams, 69 Miss. 631, 12 So. 957.
It seems to us to be clear that appellant violated no duty that it owed to appellee. The servants in charge of the train did nothing in the operation thereof to inflict injury upon him. The derailment was as much a surprise to them as it was to appellee. There was nothing they could do to avoid the injury after seeing appellee in a position of peril. In other words, the derailment was an unavoidable accident, and appellant should not be held for the injury suffered by appellee as a result of the derailment.
The peremptory instruction requested by appellant at the conclusion of all the evidence should have been granted because of the reasons advanced, and for the additional reason that the Chief Dispatcher of appellant testified that the stream line train was not scheduled to run on the day of the derailment, July 18, 1935, and did not run on that date, and since the train was not scheduled to run, and did not run, it cannot be said that there was an invitation from appellant to appellee to come to its station at Tuscola and take passage on its stream line train, and appellee was a bare licensee at the station at the time of the accident, and has no right of action against appellant because of the injury received as a result of the derailment of the freight train.
Holland v. Sparks, 92 Ga. 753, 18 S.E. 990; Woolwines Admr., v. C. O.R. Co., 15 S.E. 81; Dooley v. M. O.R.R., 12 So. 956.
One cannot make of himself an invitee of a railroad by going to its station to board a train that is not scheduled to run simply because he has heard a rumor that such a train will run. Liability for this relation cannot be imposed on this manner. Such a relation could not be created without the knowledge or participation of the railroad. The train did not run and was not scheduled to run. The next train scheduled to run after the time of the derailment was due at 5:26 p.m., more than three and one-half hours thereafter. It is ridiculous to say that appellee was an invitee of appellant when he went to its station at Tuscola at 1:48 p.m., to take passage on a train due at 5:26 p.m. There must be some reasonable limit of time before the arrival of a train within which one may be considered an invitee.
There is no proof of negligence on the part of the servants of appellant in the operation of the train.
The servants of the railroad company were guilty of no negligence toward appellee because his injuries were caused by an unforeseen accident which was as unexpected to them as to him, and the injuries suffered by appellee were unavoidable insofar as appellant was concerned at the time and place in question, and the injuries were really caused because appellee exposed himself to the dangers and hazards of railroading when he really had no business to transact with the railroad company at the time and place, because they had no trains to run at that time on which he could take passage, and appellee had no right to rely upon rumor that a train was to run, and to expect to take passage thereon.
22 R.C.L., page 916, secs. 164, 165; 2 Thompson's Commentaries on the Laws of Negligence, sections 1713, 1714, 1715 and 1718; 20 R.C.L. 23; 11 L.R.A. 689, notes; I.C.R.R. v. Miner, 202 Ill. 624, 67 N.E. 398, 95 A.S.R. 266.
Since beginning the preparation of this brief, our attention has been directed to Illinois Central Railroad Company v. Laloge, decided by the Court of Appeals of Kentucky, 62 L.R.A. 405, wherein the court in construing a statute similar to Section 7080 of our 1930 Code, said: "But we have in this state what may be regarded as legislative construction of the length of time that should be considered reasonable for the carrier to be required to look out for, and safeguard, its passengers before they have taken actual passage. Ky. Stat., sec. 784: `All companies shall keep their ticket offices open for the sale of tickets at least 30 minutes immediately preceding the schedule time of departure of all passenger trains from every regular passenger depot from which such trains start or at which they regularly stop; and shall open the waiting room for passengers at the same time as the ticket office, and keep it open and comfortably warmed in cold weather until the train departs.' The carrier is not an innkeeper. It cannot, in the discharge of its other duties required by the law, be held to furnish accommodation for the entertainment, for an indefinite length of time, of those who contemplate in the future becoming its passengers. It would have been just as reasonable to have held appellant liable for the safety and comfort of appellee at any time, while at its depot, from 9 o'clock in the morning of the 16th to 12:30 in the morning of the 17th, as for the time sued for. We do not mean to hold that, if the carrier agrees to accommodate the proposed passenger by a longer time than the statute provides, it would not be liable for any injuries sustained because of its negligence during such time. But in the absence of such agreement, express or implied, we hold that the proposed passenger cannot claim the benefit of that relation by coming onto the carrier's premises an unreasonable length of time before the train which he expects to take passage on is due to depart, and that such reasonable time has been fixed by the statute above quoted. It follows that the peremptory instruction asked for by appellant should have been given."
Phillips v. Southern Ry. Co., 124 N.C. 123, 45 L.R.A. 163.
A.M. Warwick, of Carthage, for appellee.
The trial court very properly refused a peremptory instruction in favor of appellant at the close of the evidence offered by appellee. Appellant invited the traveling public to its station at Tuscola to take passage on its trains, and appellee had a right to rely on this invitation and did appear at its station for the purpose of taking passage on its train. He was an invitee.
Adams v. Y. M.V.R.R. Co., 115 Miss. 835, 76 So. 733.
Having showed by the evidence that appellee received an injury by appellant's train, under the authority of Section 1580, Miss. Code of 1930, prima facie negligence on the part of appellant was established. It then became the burden of the appellant to establish every act or omission, from the doing or omission of which negligence could be drawn.
A. V. Ry. v. Thornhill, 63 So. 674; Miss. Cent. R.R. Co. v. Robinson, 64 So. 838; N.O. N.E. Ry. v. Brooks, 38 So. 40.
There perhaps could be no facts nor circumstances to which the well settled doctrine of "res ipsa loquitur" should be more aptly applied than here in our case. It is entirely the duty of appellant to explain to the satisfaction of the jury that it is entirely blameless for the open switch.
A. V.R. Co. v. Groome, 52 So. 703, 97 Miss. 201; J.C. Penney Co. v. Evans, 127 Miss. 900, 160 So. 779.
It is absolutely the exclusive province of the jury to adjudge as to whether appellant fully exculpated itself from blame for the open switch.
Appellant maintains that appellee was not an invitee but a bare licensee because he did not meet the expected train, and that it was 3 1/2 hours until the next scheduled train. Our court has held that the relation of passenger and carrier continued where one disembarked a train and was unable to get into the waiting room at the depot but left and went elsewhere, notwithstanding the fact that she left and did not enter the waiting room.
Davis v. Day, 89 So. 814, 127 Miss. 140.
Nor does the fact that it was 3 1/2 hours until the next train was scheduled to arrive conclusively define the appellee's relation to appellant at the time of injury.
22 R.C.L. 919.
There being no station agent at Tuscola, no regularly kept schedule of trains, we submit that appellee had the right, upon hearing this fast approaching train, going in the direction he desired to take passage, to go to the station for the purpose of satisfying his intention and desire, taking passage on the train; and, being there with this intended purpose, he was an invitee of appellant.
The evidence shows that appellee was standing near the track, between the switch and the main line, obviously west (or south) of the juncture of switch and main line where the derailment began. Having shown that he was thus so close to main line, at a place where he was within his legal right to be, and that he was injured by a moving train, it then became the appellant's duty to explain the occasion in sufficient manner to exculpate itself from blame in the judgment of the jury.
Section 1580, Code of 1930; Miss. Cent. Ry. v. Robinson, 64 So. 838; N.O. N.E. Ry. v. Brooks, 38 So. 40; J.C. Penney Co. v. Evans, 172 Miss. 90.
Greater caution is required of a railroad company in running its trains in the country while passing places where it is known that persons are in the habit of being at the track than is required in places unfrequented and scantily populated.
22 R.C.L., 948.
It is generally held that it is for the jury to determine whether or not the speed at which the train was operated was negligent under all the circumstances.
22 R.C.L., 947.
If a railroad company expressly invites or tacitly permits persons to be upon its premises or in or about its machinery, the company owes to such persons the duty, not only not to injure them when their presence becomes known, but also to anticipate their presence at the time when or the place where such invitation or permission would probably bring about their presence, and to take such measures as ordinary prudence would require to prevent injury to them if they are in fact present.
22 R.C.L., 919, sec. 165.
Argued orally by Clyde Hester, for appellant, and by A.M. Warwick, for appellee.
Appellee recovered judgment in the sum of $2000 against the appellant, railroad company, in the circuit court of Leake county, for injuries received by him because of the alleged negligence of the company in the derailment of one of its freight trains at the flag station of Tuscola on its line of railroad between Jackson and Union, Miss.
The evidence disclosed that on July 18, 1935, the appellee went to this flag station with the idea of seeing the company's new stream-line train, known, as "The Rebel," on its first run, and also for the purpose of taking passage on the train in the event it should be going toward the station of Lena. This particular train was not scheduled to run, nor did it run, either on that day or on the next day, but there was a general rumor being circulated in the community where the appellee lived to the effect that the train would run that afternoon, although appellee had not been able to ascertain from this rumor in what direction the train was to run. It is shown that no agent or employee of the railroad was in any manner responsible for the circulation of this rumor. Appellee arrived at Tuscola between 1:30 and 2:00 o'clock p.m., and waited at the station. The company kept no agent there, but the trains received and discharged passengers at that point on being signaled to do so. The next passenger train was scheduled to arrive at 5:36 o'clock p.m., and while appellee was standing near the station house a through freight train arrived at approximately 1:48 p.m., and several of its cars derailed and completely demolished the small station building, with the result that appellee was injured by some of the flying timbers.
The derailment was due to the fact that the switch of the spur track had been unlocked or otherwise opened, but there was no evidence to show that any employee of the company was responsible therefor. It is shown, however, that the switch was securely locked when examined by the section foreman between 3:30 and 4:00 o'clock on the previous afternoon, and that no train had used the spur track in the meantime. It was further shown that keys for unlocking the switch were generally distributed among employees having occasion to use them; that at least two or three dozen of these keys were misplaced or lost every year; and that occasionally some of them were turned in by persons not in the employ of the company.
All the facts and surrounding circumstances in connection with the derailment of the train were placed in evidence by the appellant, and it was clearly shown that the train crew in approaching the station had no more reason to suspect what was about to occur than did the appellee. The engine of the train and one or two of the cars passed the switch without being derailed, but several of the cars immediately behind these derailed and ran into the station building, resulting in the injury complained of as aforesaid. The train was running fast at the time, but the proximate cause of the derailment was shown to be the fact that the switch had been unlocked or otherwise opened by some person whose identity was unknown. Tuscola is not an incorporated town or village, and it cannot be said that the train was running at an unlawful or reckless rate of speed under the circumstances.
It is contended by appellee that he was for all intents and purposes a passenger, and that the appellant owed him a high degree of care; that there was no posting of the hours of arrival and departure of the trains at this station whereby he could have determined when he should be there for the purpose of taking passage.
Section 7080, Code of 1930, provides that every railroad shall keep rooms open for the reception of passengers, and shall keep them properly heated and lighted when necessary, at all passenger stations at least one hour before the arrival, and one-half hour after the departure, of passenger trains. It was held in the cases of Metcalf v. Yazoo M.V.R.R. Co., 97 Miss. 455, 52 So. 355, 28 L.R.A. (N.S.), 311, and Davis v. Day, 127 Miss. 140, 89 So. 814, that persons arriving at passenger stations within one hour before the arrival of a train for the purpose of taking passage thereon, and persons disembarking from a train and remaining at the station for half an hour thereafter, are to all intents and purposes to be treated and considered as passengers. The Court of Appeals of Kentucky, in construing a statute similar to ours, in the case of Illinois C.R.R. Co. v. Laloge, 113 Ky. 896, 69 S.W. 795, 796, 62 L.R.A. 405, said that: "we have in this state what may be regarded as legislative construction of the length of time that should be considered reasonable for the carrier to be required to look out for, and safeguard, its passengers before they have taken actual passage." Our court has not passed on the question as to whether or not our statute in this regard would be applicable to the rights of intended passengers at stations where no agent is kept to perform the duties required by it, or at stations where the arrival and departure of trains are not posted. Nor is it necessary to a determination of this case that we now decide that question. Suffice it to say, there was no duty to post the fact that a certain train was not to run, which had never run, and which was not scheduled to run.
But even if it should be held that the appellee was for all intents and purposes a passenger, and not a mere licensee, at the time he was injured, the fact remains that under the state of facts hereinabove set forth it would be the merest conjecture into the realm of possibilities to hold that there was any proof of negligence on the part of the servants of the appellant in the operation of the train that proximately caused or contributed to the jury, or that any of its servants were in any manner responsible for the switch being unlocked or otherwise opened and allowed to so remain, or in failing to discover such condition at the place in question on its line of railway far removed from where it was required to keep an agent on duty, where it is shown that a reasonable supervision was exercised by the company through its section foreman to ascertain and preserve the safety of the track for the operation of trains. There was no duty to constantly watch the track to insure its safety for the purpose of avoiding unforeseen accidents.
The correct rule to be deduced from all the authorities is that in order to recover for an injury to a person or property, by reason of negligence or want of due care, there must be shown to exist some obligation or duty toward the plaintiff which the defendant has left undischarged or unfulfilled. This is the basis on which the cause of action rests. The prima facie presumption of negligence which arises under section 1580, Code of 1930, must yield to the proven facts, all of which were fully shown in evidence and clearly exonerated the appellant of any negligence. Appellee was not on the track and was not seen by the train crew to be in a place of peril as the train approached. He was on the station grounds, and they had no reason to anticipate that the train would leave the track and cause injury to him, and it is self-evident that there was nothing they could do to prevent injury to him after the derailment of the cars, from in the middle of the train, over which they had no control, had begun. The derailment was merely an accident, which could not have been foreseen by the exercise of due care.
Reversed, and judgment here for the appellant.