Allen v. Yazoo & Mississippi Valley Railroad

71 So. 386 | Miss. | 1916

Cook, P. J.,

delivered the opinion of the court.

This is an appeal by the appellant, plaintiff below, from a judgment entered by the circuit court against her. The suit was for personal injuries inflicted, as she claimed, by the negligence of the railroad company. After the close of the evidence, the court, at the request of defendant, directed the jury to return a verdict for the defendant.

We here take from the brief of appellant what we believe to be a fairly accurate statement of the facts presented to the jury by plaintiff’s evidence, viz.:

“At the time the appellee, the'Yazoo & Mississippi Valley Railroad Company, and for a long time prior thereto, built its machine and repair shops and constructed its yards and switch tracks in the city of Vicksburg, Klein street extended east and west to the Mississippi river. The city of Vicksburg granted to appellee part of Klein street and also a part of Depot and Levee streets, both of which ran north and south and at right angles to Klein street, in order that it might build and construct its machine shop, yards, and tracks thereon. Prior to the building by appellee of its shops, yards, and tracks, the public used the parts of Klein, Levee, and Depot streets on which appellee built its shops, yards, and tracks, as it did the other streets of the city of Vicksburg. There is a hill or sharp declivity on Klein street, extending about two hundred or two hundred and fifty feet in a westerly direction to the right of way of appellee, which formerly extended to Levee street. After the construction of the shops, yards, and tracks of appellee, the public continued to use Klein street as a way for pedestrians from the top of the hill down to the right of way of appellee at or near the foot of the hill. At the foot of the hill where Klein street intersected the right of way of appellee, there was a pathway or footway running north on the right of way of appellee, which was used by those pedestrians who came down the hill on Klein street, as above stated, and who desired to go to the stores, warehouses, and places of business on Levee street. This route was generally used by the public in going from Klein street north to Levee street, from the time the shops, yards, and tracks of appellee were built and constructed, until after the injury complained of by appellant. About fifteen years prior to the injury to appellant, the citizens of Vicksburg in the neighborhood of Klein street petitioned the board of mayor and aider-men to erect a flight of steps at or near the top of the hill or declivity on Klein street going down to the right of. way of appellee. In response to that petition, the city of Vicksburg erected in Klein street a flight of fifteen steps, which was east of the right of way of appellee, and the place where appellant was injured. At that time there was a gradual slope down the hill on Klein street that led directly from the flight of steps erected by the city to the pathway on the right of way of appellee which ran north from Klein street and which had been used by the public for many years in going from Klein street to Levee street, and to other portions of the city north of Klein street. Some time subsequent to the building of the flight of steps by the city of Vicksburg on Klein street on the hill, appellee made an excavation up to the line of its right of way on Klein street for the purpose of-laying tracks, thereby leaving a perpendicular embankment at the intersection of Klein street and its right of way, about four and one-half feet high. After making this excavation, which left a perpendicular embankment at the intersection of Klein street and its right of way, appellee erected a flight of wooden steps six feet wide leading over the perpendicular embankment caused by the excavation to the pathway or passageway on its right of way going north to Levee street, which had been previously used by the public for that purpose for many years.

“After appellee made the excavation on Klein street, and erected the flight of steps ‘on which appellant was hurt and injured, ’ leading from Klein street to the pathway or passageway on its right of way going north to Levee street, the public generally continued to use Klein street and the flight of steps erected by 'the city thereon, and the flight of steps erected by appellee at the foot of Klein street, and on its right of way, and connecting Klein street with the pathway or passageway on the right of way of appellee going north from Klein street, in order to reach Levee street, for many years prior to the injury of appellant, as it had always done prior to the ■excavation of its right of way and the erection of the ■steps over the embankment caused thereby, by appellee. The footpath or passageway leading from the flight of •steps erected by appellee on its right of way at the foot ■of Klein street, and going north to Levee street, was ■east of the. railroad track in the yard of appellee, and, in order to use this pathway or passageway, pedestrians were not compelled to cross any of the tracks of appellee, or to assume any dangerous risks whatever in going to Levee street or that part of the city north of Klein street.

“The evidence shows that Klein street and the two ■flights of steps, one erected by the city of Vicksburg on Klein street, and the other constructed by appellee on its right of way at the foot of Klein street, were generally used by the public in going from Klein street north to Levee street, as was also the pathway or passageway leading from the steps constructed by appellee on its right of way at the foot of Klein street and leading north to Levee street, and had been so used by the public for that purpose for many years, and that appellee during all the years it had been so used by the public had made no objection, or given any notice to the public not to use either the steps on its right of way or the way leading therefrom to Levee street.

‘ ‘ The testimony further shows that the flight of steps erected by appellee on its right of way at the foot of Klein street about fifteen years prior to the injury of appellant thereon had been repaired and maintained by appellee during all the years. That Ida Allen, the appellant, moved into the neighborhood near Klein street about two weeks before her injury, and desiring to go to Leofoldt’s store on Levee street, north of Klein street, she went to Klein street, which was the usual way and her most direct route, thence down Klein street to the flight of steps erected by the city of Vicksburg, and down this flight of steps erected by the city to the flight of steps at the foot of Klein street erected, repaired, and maintained on its right of way by appellee, intending to proceed down this flight of steps to the passageway leading therefrom on the right of way of appellee, north to Levee street, which was the usual way the public traveled in going to Levee street, and the way that she had seen others go; and, while going down the flight of steps erected and maintained by appellee on its right of way at the foot of Klein street, one of the steps being out of place thereon, she’ fell with great force and violence, receiving from the fall serious and permanent injuries.”

If there is nothing in the evidence as a whole to warrant a jury in finding that plaintiff was induced to go upon the steps by the invitation or procurement, express or implied, the railroad company is not liable for her injuries.

This question has come before the courts in many cases of varying facts, and there seems to be no difference in the decisions upon the rule of law controlling the’subject ; but the facts of each case determine the liability of the person or corporation charged with negligence.

‘ ‘ The hare permission of the owner of private ground to persons to enter upon his premises does not render him liable for injuries received by them on account of the condition of the premises. But if he expressly or impliedly invites, induces, or leads them to come upon his premises, he is liable in damages to them (they using due care) for injuries occasioned by the unsafe condition of the premises, if such condition was the result of his failure to use ordinary care to prevent it.”

This excerpt from the opinion of the supreme court of Arkansas, in St. L., I. M. & S. R. Co. v. Dooley, 77 Ark. 561, 92 S. W. 789, states the governing rule for this case in plain and comprehensive terms. One may invite another to his home by asking him to come to see him at some indefinite time. One may influence or induce another to enter his premises hy providing an easy and convenient pathway across the premises which seems to be intended for use of the public in going from one point to another, and which provides a near cut and is constantly used by the general public as a public thoroughfare.

This court, in Lepnick v. Gaddis, 72 Miss. 200, 16 So. 213, 26 L. R. A. 686, 48 Am. St. Rep. 547, thus defines ‘ ‘ implied invitation: ”

“The phrase, ‘implied.invitation,’ in its real value and significance, as derived from its application in the adjudged cases, imports knowledge by the defendant of the probable use by the plaintiff of the defendant’s property so situated and conditioned as to be open to, and likely to be subjected to, such use.”

The city of Vicksburg seems to have assumed, without question on the part of appellee, the right to provide a thoroughfare for pedestrians at the head of this incline, and it seems to he justly inferable that the railroad company recognized that the general public would use this way as a matter of supposed right, and this inference is deducible from the company’s act in restoring its end of the way by erecting the steps after it had cnt away its end of the incline.

According to the record, the city assumed jurisdiction over the eastern part of the path which led down to the foot of the incline, and from thence into and through the private yards of the company. When it became necessary for the company to destroy the western terminus of the hill path, it seems to have believed that it was under obligations to provide another way for those who der sired to use the path, and so it immediately put in the steps. It may be true that the company was under no duty to put in the steps; but it nevertheless did put them in, and we think the public had a right to take its acts as an invitation to the public to use the steps. Here was a public pathway, if constant, long-continued, and unquestioned use can establish a right. What did the erection of the steps imply, under the circumstances? The' irresistible conclusion is that this was an implied invitation to continue the use of the way.

The jury were warranted in finding that the situation, created by the defendant, was such that would .import “knowledge by the defendant of the probable use by the plaintiff of the defendant’s property so situated and conditioned as to be open to, and likely to be subject to, such use.” Lepnick v. Gaddis, supra.

This being our view of the record, the peremptory instruction should not have been given.

Reversed and remanded.