Barker v. St. Louis Southwestern Ry. Co. of Texas

(after stating the facts as above). The court peremptorily instructed a verdict in favor of appellee, and this ruling is presented as being error. Considering the evidence in its strongest feature, as against a peremptory instruction, it could be said that appellant was at the stockyard of appellee as a shipper of live stock, and to deliver the same for shipment. He was therefore, while at the stockyard, in the legal relation to appellee of an invitee on the premises, and there was imposed by law upon appellee the legal duty to use reasonable care and prudence to render the premises reasonably safe for him. But according to appellant's own testimony he had finished his business with appellee, and was afterwards injured by falling into an open space at the double bridge situated on the main line track about 300 yards distant from the stockyard. By actual measurement on the ground, it appears that the point of injury was 1,150 feet distant, and to that distance disconnected from the premises as actually occupied and used for stockyard purposes. It further conclusively appears that the stockyard premises were confined by fencing, and established and maintained by appellee against a public street for free and accessible approach thereto, and that appellee maintained and constructed no other approach or entrance thereto for shippers. The pathway across the railway tracks was made, it conclusively appears, and used by pedestrians for their own convenience, and appellee did not construct or maintain it as a necessary approach or entrance to the stockyard for shippers from the public streets. Therefore it must be said that it appears as an uncontroverted fact that the appellee had constructed and maintained the stockyard with plain and visible limits, and had constructed and maintained it against a public street of the city on the west, with entrance adjacent thereto, that shippers might and would enter and approach it direct from the used public streets, and constructed and maintained no other approach or entrance. And it further appears conclusively that appellant did not suffer injury through any condition at or about the stockyard premises, but was injured at a point remote and disconnected from the stockyard premises as actually maintained and used for stockyard purposes.

So, admitting that it appears as a fact that appellant, because a stock shipper, was upon the stockyard premises in the first instance as an invitee, still it must be further said, we think, that it conclusively appears that such relation had terminated, and, in consequence, the legal duty imposed in such relation on appellee had ended, when appellant, upon finishing his business with appellee, had voluntarily passed out of and beyond the limits of the stockyard premises with safety, as was the case.

The pathway in evidence, and on the route of which was the bridge where the injury occurred, not having been constructed, maintained, or provided by appellee as a necessary approach from the streets of the city to the stockyard for shippers, the appellant could predicate no claim to have his rights measured in the relation of invitee on the stockyard premises in respect thereto. His invitation to be upon the stockyard premises necessarily could not be extended, we think, to other parts of appellee's premises beyond the stockyard premises and approach thereto as constructed and maintained or provided by appellee for such purposes for shippers. When, as it conclusively appears, appellee so constructed its yard and maintained it as to provide a full, free and safe way to enter and leave the same on the adjacent public street on the west, as it did, and this was the only approach provided, it discharged its full duty to shippers and appellant. In consequence shippers could not be said to be invited by appellee to approach or leave the yard by any other way. If the pathway by the yard was not constructed or provided by the appellee for shippers as an approach to the yard from the streets of the city, and it not being made necessary to so use the same, as here, then the use of such pathway by appellant to reach the main business portion of the city would not rest in invitation to use it as an approach or appurtenant of the yard, but the right to its use by him would be referable to mere license heretofore granted pedestrians to use that particular portion of its premises along the route of the pathway. Therefore when appellant left the limits of the stockyard and voluntarily chose, as he did, to go to the pathway made by pedestrians along the main-line track, instead of going from the yard to the adjacent public street, he was upon such pathway on the premises by license merely, and his rights would be measured in that relation.

The evidence shows that the bridge at the point of injury is a permanent structure, and the evidence does not show or tend to show any negligence in the construction or maintenance of the same as such. In such case, as a licensee on the premises at the point of injury, appellant must be held to have accepted the premises as he found them, and appellee would not be liable. Railway Co. v. Montgomery, 31 Tex. Civ. App. 491, 72 S.W. 617; Railway Co. v. Spivey,97 Tex. 143, 76 S.W. 748; Railway Co. v. Sgalinski, 19 Tex. Civ. App. 107,46 S.W. 113.

The judgment was ordered affirmed.