47 So. 185 | Ala. | 1908
The trial in the court below was had upon the first and fourth counts of the complaint as amended, and the case as stated by these, counts was substantially as follows:
The same grounds of demurrer Avere interposed to each of these countsj and were in substance, that each of said counts showed that the plaintiff was a trespasser,
It is insisted in argument by the appellant, that the plaintiff was a trespasser or a mere licensee under the facts stated in the first and fourth counts, on which the case was tried. In support of this contention, as well as in support of the motion to strike portions of these counts, appellant cites the case of M. & C. R. R. Co. v. Womack, 84 Ala. 149, 4 South. 618, and other cases of a similar natqre. The opinion in /that ’case states): “He was clearly a trespasser upon the right-of-way of the defendant. Any person who enters and walks at places where the public have no light, unless by the invitation or license of the company, is a trespasser, and assumes the peril of the position in which he has voluntarily placed himself.” (Italics ours.) The doctrine laid down in the above case, that the owner owes no duty to a trespasser to make his premises safe, and that ordinarily the mere acquiescence in the use of the right-of-way by a railroad company does not amount to permission, is well settled by numerous decisions of this court; but they have no application to the case stated in the complaint here in question, which specifically avers that this usage was by “invitation of the defendant.” Different rules apply in cases where the parties injured are present on the premises by invitation or license of the owner, express or implied. — Montgomery & Eufaula R. R. Co. v. Thompson, 77 Ala. 456, 54 Amer. Rep. 721, and other cases hereinafter cited.
As the second count was charged out of the case and the third count went out on demurrer sustained, their consideration is not necessary here. As stated the case was tried on the first and fourth counts.
The defendant pleaded the general issue and filed special pleas setting up contributory negligence.
The facts as shown without conflict in this case were substantially as follows: The plaintiff was a passenger on defendant’s train from Birmingham to Epes, where he arrived on a very dark and rainy night. The train stopped at the depot, plaintiff left the train, and went into the depot to leave a satchel, expecting to spend the night in McGee’s Hotel at Epes, where most travelers usually stopped. There was another hotel close to the depot, but few traveling men went there. McGee’s hotel was situated something more than 235
It was further shoAvn that near the hotel there were some steps leading from a path from the hotel down to the railroad track Avhicli was, at that point, in a shallow cut; that defendant’s passengers in going to and from the hotel and the depot usually, and had for a number of years, used a Avell-beaten path up the main line of defendant’s railroad track from the depot and
The plaintiff stated on cross-examination that defendant had never expressly invited, or given him permission to walk on its track or to nse its track as a public highway.
The foregoing being the facts in evidence, the first inquiry arising is, was there any evidence from which it might reasonably be inferred that the plaintiff was expressly or impliedly invited by the defendant to use its railroad track as he was using it at the time he fell to his hurt. The plaintiff having testified that he was not expressly invited or permitted by the defendant to use the way he pursued, and the evidence, for that matter, failing to disclose any express invitation, the question is narrowed down to whether, under the facts
Let us first consider the general invitation which is implied by law, and the consequent duty imposed, pertaining to the use of railroad depots, platforms, exits and approaches, and the grounds reasonably near thereto, all of which may generally be comprehended by the term “depot grounds”; what they are and how far they extend.
In the case of Montgomery & Eufaula Ry. Co. v. Thompson, 77 Ala., in discussing this question, that opinion first asserts the proposition, that there is a common duty resting upon all owners of -real estate, upon which the public is expressly or impliedly invited to enter, that it shall be kept free from traps, and pitfalls, and that for a neglect of this duty, parties injur
In the case of Ensley Railway Co. v. Chewning, 93 Ala. 24, the plaintiff was a passenger from Birmingham to Coalburg, and had gotten off the defendant’s train on its main line to take a train on its branch line in the night. He walked up the track a short distance and
Applying the principles involved in the foregoing cases, we are of the opinion that the place where the plaintiff in this case was injured, under the facts so far considered, being at a culvert 235 yards up the main line of track from the depot, was not within the limits of defendant’s depot grounds, or approaches, “reasonably near” to the depot, to which the general invitation implied by law, and the duty imposed thereby, as stated in Montgomery & Eufaula Ry. Co. v. Thompson, supra, attaches; and that there was nothing in the appearance of things in and around the depot, as the plaintiff stepped out of the door into the darkness of the night, just before this misfortune came upon him, which c'ould reasonable have led him to believe that the railroad company held out or designed its main line of track as ah approach to or pathway of egress from its depot, or, for that matter, as a passage-way to be used by its passengers who might wish to go to a hotel in which the railroad had no interest and which was some 250
We now come to enquire whether* under tbe facts in evidence, without regard to tbe general duty to keep its depot grounds in safe condition, tbe defendant bad
“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 use Avas not <mly acquiesced in by the owner or person in possession or control’ of the premises, but that it was in accord
In the case of Sturgis v. D. G. H. & M. R. Co. 72 Mich. 619, which is nearly in point, and in which it was held tliat no invitation was implied, the plaintiff fell into a cattleguard, which crossed under the railroad track. Plaintiff had left the train after dark, was not acquainted with the premises, and instead of going into the depot, which fronted on a highway, on the other side, and without making inquiry, walked along a platform 270 feet long to where it ended with a step down upon the track in the station yard, and then walked up the track in the direction taken by the train which he had left. There Avere no lights along' the track after passing the
In the absence of invitation or license, “It is the settled doctrine in this State, supported by the great weight of authority in England and America, that ordinarily the right-of-way of a railroad company is its
Applying the principles laid down in the authorities, to the facts of this case, we do not think the plaintiff discharged the burden of proving invitation on the part of the defendant company. Mere acquiescence in the use of the track, for that distance beyond its depot, even by passengers, going to the hotel, is not enough to remove the case from the realm of mere license — the company having furnished open, free and safe exit to the highway, and there being no general duty resting upon the carrier to construct or maintain a safe passageway for its passengers to and from any particular hotel, unless under exceptional circumstances, such as eating houses where the trains are stopped for passengers to get meals, or hotels in which the carrier is interested, or where situated within, or adjoining, depots or depot grounds. But, generally speaking, it is no part of a carrier’s duty to see a passenger safely landed
It was not shown that the railroad company constructed the steps in question; its servants merely took them down and replaced them, and the company impliedly acquiesced in the same use afterward that had existed before. Steps up the side of a shallow cut 250 yards from depot could furnish no visual invitation to use a pathway commencing at the depot.
It is not necessary to extend this opinion by considering the numerous assignments of error separately. The court below erred in refusing the general charge requested in favor of the defendant, as well as the motion for a new trial.
Reversed and remanded.