156 Iowa 31 | Iowa | 1912
In the afternoon of December 7, 1909, plaintiff was discovered lying on the floor in a box oar in a train which had just reached Lehigh over a branch line of the 'defendant from Ft. Dodge to that place. The attention of the train crew being directed to him, he was assisted to the depot platform. Though he testified to having boarded a passenger ear at Ft. Dodge, the conductor and brakeman denied having seen him there, and he offered no explanation of his exit from a passenger car to the box car in which he was found on the way. He remained at the depot in Lehigh until the train was ready to return
Common carriers are required to exercise a very high degree of care in the protection of travelers being transported against the misconduct of drunken and disorderly persons, and the manifest design of this statute is to enable them to guard against the dangers incident' to their conveyance by authorizing them to refuse such persons as passengers or after becoming such to expel them from their passenger coaches.
The plaintiff not only was intoxicated, but had refused to pay his fare. The defendant did not owe him the duty of carrying him gratuitously, and might ordinarily eject him at the first station reached. The record is without evidence from which it could rightly have been found that the conductor in doing so violated any duty owing plaintiff, and the first ground of negligence ought not to have been submitted to the jury.
As the plaintiff was not there on business connected with the company, the agent owed him no affirmative duty. In the absence of information to the contrary, he might assume that plaintiff was capable of taking care of himself, and was not bound before ordering him out of the depot on closing to ascertain his actual condition. If, however, the apparent condition of plaintiff was that of helplessness or of intoxication, such as to render him incapable of caring for himself, in view of the -inclemency of the weather, and he was in such condition actually, then it devolved upon the agent to exercise such care, and take such precautions for his safety as an ordinarily prudent person would under like circumstances. In short, he was not charged with notice of his actual condition, save as this was apparent from his conduct’ or talk or appearance. And even 'though plaintiff may have been in a drunken condition, he was not bound to play the good Samaritan and minister to his wants; but, when the station agent required him.to leave the- depot and go out in the cold.night, the duty or obligation immediately arose to exercise ordinary care in what he did- In other words, though' the agent may have had the legal right to require the plaintiff to vacate the room he was occupying, yet, in doing so, he was bound to take into consideration the plaintiff’s condition, and to -exercise ordinary care for his protectibn. Undoubtedly the plaintiff’s condition was due to his past misconduct, but this did not excuse the defendants when brought in relation with him from exercising due care in
In other words, though the defendants had the legal right to exclude persons from the, depot, save within a reasonable time before, during, and after the arrival and departure of trains, in exercising that legal right, they might not do so in a manner to imperil the life or limb of persons who were in the depot. In Depue v. Flateau, 100 Minn. 299 (111 N. W. 1, 8 L. R. A. (N. S.) 485), the plaintiff, who was a stock buyer, called at the defendant’s house to look at cattle, but, as it was late, proposed to remain overnight, and examine them more carefully in the morning. Ilis request was refused, but he was invited to and did remain for supper. After eating, he was taken sick. Though this was known to defendants, they refused to permit him to remain overnight, put him in his cutter, and, though he was unable to drive the team, started it off toward his destination. After going about a half mile, he fell from the cutter, and lay in the snow all night, to his great injury, and the court held that a case was made out on which damages might be allowed, saying after quoting from Union Pacific Ry. Co. v. Cappier, 66 Kan. 649 (72 Pac. 281, 69 L. R. A. 516):
The facts of this case bring it within the more comprehensive principle that whenever a person is placed in such a position with regard to another that it is obvious that, if he does not use due care in his own conduct, he will cause injury to that person, the duty . at once arises to exercise care commensurate with the situation in which he thus finds himself, and with which he is confronted, to avoid such danger; and a negligent failure to perform the duty renders him liable for the consequences of his neglect.*38 This principle applies to varied situations arising from non-contract relations. It protects the trespasser from wanton or wilful injury. It extends to the licensee, and requires the exercise of reasonable care to avoid an unnecessary injury to him. It imposes upon the owner of premises, which he expressly or impliedly invites persons to visit, whether for the transaction of business or otherwise, the obligation to keep the same in reasonably safe condition for use, though it does not embrace those sentimental or social duties often prompting human action. 21 Am. & Eng. Ency. Law, 471; Barrows on Negligence, 4. Those entering the premises of another by invitation are entitled to a higher degree of care than those who are present by mere sufferance. Barrows on Negligence, 304. The rule stated is supported by a long list of authorities, both in England and this country, and is expressed in the familiar maxim, Sic utere tuo, etc. They will be found collected in the works above cited, and also in 2 Thompson on Negligence, 1702. It is thus stated in Heaven v. Pender, 11 L. R. Q. B. Div. 496: The proposition which these recognized cases suggest, and which is, therefore, to be deduced from them, is that whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense did think would at once recognize that, if he did not'use ordinary care and skill in his own conduct with regard to those circumstances, he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger. It applies with greater strictness to conduct toward persons under disability, and imposes the obligation as a matter of law, not mere sentiment, at least to refrain from any affirmative action that might result in injury to them.
The cases bearing on the proposition stated are collected in 69 L. R. A. 513. See, also, Haley v. Railway, 21 Iowa, 15; Weymire v. Wolf, 52 Iowa, 533; Louisville, C. & L. Ry. Co. v. Sullivan, 81 Ky. 624 (50 Am. Rep. 186); Haug v. Railway Co., 8 N. D. 23 (77 N. W. 97, 42 L. R. A. 664, 73 Am. St. Rep. 727); Louisville & N. Ry. Co. v. Ellis, 97 Ky. 330 (30 S. W. 979); Black v. Railway, 193 Mass. 448 (79 N. E. 797, 7 L. R. A. (N. S.)
The agent required plaintiff to leave the depot at about five o’clock in the afternoon, walked up with him to' the elevator nearby, then returned to the depot before going to supper. After the evening meal, he returned to the depot .about one-half or three-quarters of an hour, and then called upon a sick person for about an hour and a half, and returned to the depot to put out the lights at about half past ten o’clock. It is not our purpose, nor is it necessary, now to determine what the defendants should have done in the exercise of reasonable care. All we do hold is that if from the evidence it appeared that the plaintiff was in such a drunken and sodden condition that he was unable to take care of himself, either by walking to Ft. Dodge, eight miles distant, as it is claimed he 'started out to do, or to obtain reasonable, shelter from the inclemency of the weather, and if the defendants, knowing him to be in such condition, compelled him to leave the depot and thereby expose himself to the dangers of an extremely cold night, instead of allowing him to remain in the depot until it was finally closed for the night or longer or assisting him to some place where he might be sheltered from the cold and therein they failed to pursue the course which an ordinarily prudent man would have under like circumstances, then they are liable. The instructions of the district courj; were in harmony with the rules as stated, and we think were correct.
The plaintiff testified that he knew of nothing which happened from shortly after he had left Ft. Hodge until the following morning, so that whether he understood was fairly in issue, but it is said that there was no evidence tending to show that the agent might have been aware of this. Powers testified that the agent spoke to plaintiff four or five times in the depot, and received only a mumbling response of “wait a minute,” and that he finally got him out of the depot by taking him by the collar. Ferguson testified that, after the agent came back from the elevator, he asked him what had become of the man, and the answer was that be did not know, guessed he had gone to Ft. Dodge, and said he told him the way up, and that
Because of the errors pointed out, the judgment is Reversed.