Arkansas & Louisiana Railway Co. v. Sain , 90 Ark. 278 ( 1909 )

Wood, J.,

(after stating the facts). Instruction number six was erroneous. Appellee testified that the train “had been stopped two or .three minutes” when he got upon the platform; and the testimony on*' behalf of the appellant showed that there was “no danger on the platform when the train is standing still.” Appellee testified that he “was in three or four feet of Kaust Mulkey, the brakeman, when he got upon the platform of the coach;” but he does not say that this brakeman was looking at him, or that the brakeman saw him on the platform. Brakeman Mulkey, on the contrary, testified that he did not see him on the platform before he was hurt. The above testimony was hardly sufficient to warrant the court in submitting to the jury the question as to whether or not appellee’s presence on the platform was known to the employees of the appellant. The instruction tells the jury that, although appellee may have been a trespasser, yet, if his presence was known to the employees of appellant, the latter would be bound to use ordinary,care not to hurt him. This is not the law. If the appellee was a trespasser, the burden was upon him to shows not only that he was in a perilous situation, but that such situation was discovered by the employees of appellant, and that they failed after that to exercise ordinary care to avoid injuring him. It is not enough that his peril might have been discovered by the exercise of ordinary care; he must show that they actually discovered his peril in time to have avoided the injury. St. Louis, I. M. & S. Ry. Co. v. Freeman, 36 Ark. 41; St. Louis & S. F. Rd. Co. v. Townsend, 69 Ark. 380; Burns v. St. Louis S. W. Ry. Co., 76 Ark. 10; Barry v. K. C., Ft. S. & M. Rd. Co., 77 Ark. 401. See also St. Louis, I. M. & S. Ry. Co. v. Taylor, 64 Ark. 364; St. Louis, I. M. & S. Ry. Co. v. Raines, 86 Ark. 306.

■ “A railroad company owes trespassers no contract duty.” The general rule is that it owes them no positive duty or care, and only the duty not to wilfully or wantonly injure them, or the duty to exercise ordinary care not to injure them after discovering their danger and inability to escape. 3 Elliott on Railroads, § § 1254, 1255. See 2 Hutchinson on Carriers, § 990 and note; Chicago, B. & Q. R. Co. v. Mehlsack, 131 Ill. 61; St. Louis, I. M. & S. Ry. Co. v. Ledbetter, 45 Ark. 246; Adams v. St. Louis, I. M. & S. Ry. Co., 83 Ark. 300; Little Rock & M. R. Co. v. Russell, 88 Ark. 172; Catlett v. Ry. Co., 57 Ark. 461.

There was no evidence that appellee was in a perilous situation when he went upon the platform, and no evidence that the employees of defendant knew that he was in a place of peril, even if such fact existed. The testimony is to the contrary. There was evidence that tended to show that appellee went upon the platform of appellant’s car without right. The instruction was therefore not only erroneous for the reasons stated, but was prejudicial.

Instruction number seven was abstract in some particulars. There was no evidence of any probable loss of earnings after appellee reached his majority on account of the injury. There was nothing left of the injury, according to the evidence, except a scar; and it is not shown that the scar would diminish appellee’s earning power after he reached his majority, nor that he would incur any additional expense on account of the injury after that time. Nor, indeed, is it shown that there would be any future pain after the wound had healed. It might become sensitive, but the doctor “couldn’t tell about that.” The instruction on the measure of damages was therefore erroneous. Under it the jury could roam in a realm of speculation; but for these improper elements, which the jury were told they could consider, their verdict may have been for a less sum. Who can tell? The instruction was therefore prejudicial.

A discussion of the law applicable to the facts will indicate what the rulings of the court should have been upon other prayers for instructions. We shall therefore discuss the law applicable to the facts, and such rulings as we deem material on the admissibility of evidence.

One who goes upon cars at a railway station for the purpose of meeting and assisting the incoming or outgoing passengers in such “friendly offices as may be reasonably necessary for their convenience, comfort and safety” is upon the premises of the railway company by its implied invitation, and is therefore not a trespasser. St. Louis, I. M. & S. Ry Co. v. Grimsley, ante p. 64; Ry. Co. v. Lawton, 55 Ark. 428; St. Louis, I. M. & S. Ry Co. v. Tomlinson, 69 Ark. 489. To such an one the railway company undoubtedly owed the duty of exercising reasonable care. 3 Elliott on Railroads, § 1256; 2 Hutchinson on Carriers, § 991 (553a).

But one who goes upon the premises of a railway company, or upon its cars, out of mere curiosity or for the pleasure of simply meeting and greeting friends or relatives or of seeing •strangers, but with no idea or purpose of rendering any assistance to incoming or outgoing passengers, is not there upon any invitation of the company, for such an one can not be said to be •directly or remotely upon any mission, or engaged in any business, connected with the interests of the company. Railway Co. v. Lawton, 55 Ark. 428; St. Louis, I. M. & S. Ry. Co. v. Tomlinson, 69 Ark. 489.

If the company permits persons to go upon its premises or its cars for the purpose last above indicated, such persons are not trespassers, but licensees. They are not, however, upon the ■company’s platform or car “to welcome the coming or speed the parting guest,” in the sense of the law, and are therefore nothing more nor less than bare licensees. To bare licensees railroad companies owe no affirmative duty of care; for such licensees take their license with its concomitant perils. Cusick v. Adams, 115 N. Y. 55; Carr v. Mo. Pac. Ry. Co., 92 S. W. 874; St. Louis, I. M. & S. Ry. Co. v. Tomlinson, 69 Ark. 489; Western Ry. Co. v. Wood, 99 Va. 156.

A custom upon the part of a railway company, however long continued, to permit people to go upon its cars merely for the purpose of meeting or seeing incoming passengers, but not for the purpose of rendering them any assistance, does not constitute those who go upon the cars in pursuance of such custom anything more than naked licensees. They are not licensees upon invitation, but simply by passive permission. An invitation upon the part of the company is implied where one goes upon its cars to render some needed assistance to passengers, for the reason that such service to the passengers is considered to be in the interest of the company as well. Railway Company v. Lawton, 55 Ark. 428.

Now, there is no evidence that young Sain went upon the platform for the purpose of meeting or assisting the incoming passengers. He says he went down to meet the delegates to the school exhibition, but he had not been sent there for any purpose ; he went “to see whoever came.” The delegates who were taking part in the school contests were older and larger than he; they were not in his class. His older brother, a grown young man, was one of the committee to meet the delegates, and went to the depot for .that purpose. The going of appellee to the depot merely for the purpose of meeting the delegates did not show that the appellant ■ owed him any duty of care, for his meeting of the delegates may have been prompted by idle curiosity or some purely selfish motive that was of no' concern to appellant. The burden was upon appellee, and he fails to show that he was upon appellant’s car by any invitation, express or implied. On the contrary, the evidence, viewed in its strongest light for appellee, makes him at most only a naked licensee. The court therefore erred in sending the cause, to the jury upon instructions that would warrant them in 'finding that appellee was upon the platform of appellant’s car by implied invitation, and that, if so, appellant owed him the duty to exercise ordinary care to avoid injuring him.

If appellee was a trespasser or mere licensee, then the question of his age was wholly immaterial, for in such case, as we have seen, appellant would not be liable unless it had discovered that appellee was in a position of peril from which he could not extricate himself and then failed to exercise ordinary care to avoid injuring him. McEachern v. Boston & M. Rd. Co., 150 Mass. 515; Vertrees v. Newport News, &c., Co., 95 Ky. 314; McDermott v. Ky. Cent. Rd. Co., 93 Ky. 408; Frost v. Eastern Railroad, 64 N. H. 220.

There was no showing in this case of appellant having held out any inducements or allurements' to have appellee go upon its cars. See Cusick v. Adams, 115 N. Y. 55, supra.

For the errors in the court’s rulings the judgment is therefore reversed, and the cause remanded for new trial.