99 P. 923 | Okla. | 1909
Plaintiff in error has made 27 assignments of error in its petition, but all may be considered under two propositions. The issues of fact, including the alleged acts of negligence on the part of the railway company, were found by the jury in favor of defendant in error.
The first proposition to be determined is whether the facts found constitute in law negligence in the railway company as against defendant in error. Defendant in error on the 28th day of December, 1906, went, after night, to defendant's depot in Bartlesville to meet a passenger by the name of Crane, whom defendant in error expected on one of the incoming passenger trains of the railway company, due to arrive from Coffeyville at about the hour plaintiff went to the depot. Crane lived in Bartlesville, and had gone to Coffeyille on the preceding day, and was to return to Coffeyville on the next day thereafter. A deal concerning a barber shop was pending between Crane and defendant in *184 error. Defendant in error had agreed to meet Crane. The night was dark, and as plaintiff stepped upon defendant's depot platform, which he did just as the train arrived, his foot passed through a hole in the platform, and he fell and fractured one of the bones of his leg and inflicted other injuries. It is conceded that plaintiff had no other business at the depot than to meet the passenger, Crane, and that his purpose in meeting Crane was that he had agreed to meet him, and that they were to continue the negotiations pending between them relative to the barber shop.
The railway company contends that plaintiff, under these facts, was at its depot and upon its premises as a licensee, and that it owed him no duty except not to willfully or wantonly injure him. On the other hand, it is contended by plaintiff that he was at the depot for the purpose of meeting an incoming passenger, and that, although his principal purpose in meeting the passenger, Crane, was to revive the business negotiation pending between them, he was there under the implied invitation of the railway company, and that it owed him ordinary care in the construction and maintenance of its depot and platforms to avoid injuring him.
A person who does not go upon the premises of a railway company as a passenger, servant, trespasser, or as one standing in any contractual relation to the corporation, but who is permitted by the company to come upon its premises for his own interest, convenience, or benefit, is upon the premises of such railway company as a licensee, and the railway company is liable only for willful or wanton injuries which may be done to such licensee by the gross negligence of its agents or employes. Woolwine's Adm'r v. Ches. O. Ry. Co.,
The test as to whether there is an implied invitation is stated by Mr. Campbell in his treatise on Negligence in the following language:
"The principle appears to be that invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using it."
This language is quoted with approval in Bennett v. L. N.Ry. Co., supra; but the court in that case does not, and we do not here, undertake to say that this principle furnishes an invariable test by which it may be determined in every case whether a person is upon the premises of another under an implied invitation. The courts have not, to our knowledge, fixed any general rule by which such test may be made, and whether an invitation exists in any case must be determined by the circumstances surrounding the case. But, where the facts of any case bring it within the language of the first sentence of the above quotation, an invitation is implied. It now seems to be the doctrine of the various state courts of the Union that one who goes to the premises of a railway company to meet an incoming passenger or to accompany a departing passenger is within this rule, and goes upon the premises of the railway company under an implied invitation of the company. 3 Elliott on Railroads *186
(2d Ed.) par. 1256; Tobin v. Portland, etc., R. R. Co.,
In the last case cited the court said:
"A railway company owes a duty to keep its passenger station in a safe condition, not only to those who come there for the purpose of embarking upon trains, or those who use the station in alighting from trains, but also to those who may accompany others about to become passengers, or who resort there for the purpose of meeting incoming passengers. The company owes to one who goes to its station for the purpose of meeting an incoming passenger the same duty, in regard to the station and the conduct of its employes thereat, as it does to any person going there for the purpose of transacting business with an agent of the company. While such a person is not a passenger, the company owes to him ordinary care for his safety, and will be liable to him if he is injured as a result of ordinary neglect on the part of the agent or servants of the company."
One of the cases most frequently cited by the courts in support of this doctrine is Gillis v. Pennsylvania RailroadCo.,
"Had it been the hour for the arrival or departure of a train, and he (the plaintiff) had gone there to welcome a coming or speed a parting guest, it might very well be contended that he was there by the authority of defendants as much as if he was actually a passenger, and it would then matter not how unusual might have been the crowd — the defendants would have been responsible. As to all such persons to whom they stood in such a relation as required care on their part, they were bound to have the structure strong enough to bear all who could stand on it. As to all others they were liable only for wanton or intentional injury."
The general practice of the members of the public of accompanying departing friends and acquaintances to the stations of railway companies upon whose passenger trains such friends and acquaintances are to depart, and of meeting and receiving at said places friends and acquaintances who are passengers on incoming trains, is one in which the railway company has an interest in common with the members of the public who go to its stations for such purposes. One who travels upon passenger trains must go to the places provided by the railway company for receiving him and for beginning his journey, and he has a right to have some one carry or accompany him to such places, and one who rides upon the passenger trains of a railway company, must, in order to reach his ultimate destination, depart from the train and from the premises of the railway company, and such person has a right to have some one meet him and accompany him in his departure therefrom. In many instances, without such right, persons would be unable to travel upon passenger trains or to do so only with great inconvenience. It is true the facts in the case at bar do not make it such a case, but the principle *188 is illustrated by such instances. The right of a person who travels upon passenger trains to have his friends and acquaintances accompany him in departing to the station of the railway company, or to meet and receive him at such place upon his coming, adds to the convenience and pleasure of traveling upon the company's railroad, and tends to lessen its inconveniences and burdens, and thereby tends to encourage travel, in all of which the railway company has an interest. Its interest in having passengers met at its stations by their friends and acquaintances is one in common with the interest of the persons who meet such a passenger, and we do not think that the reason of the rule requires it to be narrowly confined only to those persons who go to meet an incoming passenger purely for social pleasure or from the promptings of friendship or kinship; and the fact that one who meets an incoming passenger, acquaintance, or friend is prompted by the motive of ultimately consummating a business transaction, which may result profitably to him or both to him and the passenger, does not take him without the rule.
In Tobin v. Portland, etc., Ry. Co., supra, the person who was injured conveyed a passenger to the railway company's depot and received an injury while aiding the passenger to alight upon the platform of the company. He was there solely in his own business and profit. The court in that case said:
"The hackman, conveying passengers to a railroad depot for transportation, and aiding them to alight upon the platform of the corporation, is as rightfully upon the same as the passengers alighting. It would be absurd to protect the one from the consequences of corporate negligence and not the other. The hackman is there in the course of his business; but it is a business important to and for the convenience and profit of the defendants."
Klugherz v. Chicago, M. St. P. Ry. Co.,
In its motion for a new trial, some of the grounds assigned by plaintiff in error were: "Because said verdict is for excessive damages appearing to have been given under the influence of passion and prejudice"; "because the verdict is not sustained by sufficient evidence"; and "because it is contrary to the evidence." The court upon hearing the motion required the plaintiff to accept a judgment for $1,000 in lieu of the amount fixed by the jury, which plaintiff declined to do. The court thereupon remitted $600 from the amount fixed by the jury, overruled plaintiff in error's motion for a new trial, and rendered judgment for the sum of $1,000. This act of the court is complained of by plaintiff in error in its petition and by defendant in error in his cross-appeal, and was error as to both. The Code in force in the Indian Territory at the time of the trial in this case *190
provided that the court may vacate and set aside the verdict of a jury and grant a new trial upon several grounds, among which are the following: "Excessive damages appearing to have been given under the influence of passion or prejudice"; "the verdict or decision is not sustained by sufficient evidence, or is contrary to law." Section 5151, Mansfield's Dig. Ark. As was said by the court in Kennon v. Gilmer,
Plaintiff in error was also prejudiced by the action of the court; for, when the court decided that the verdict of the jury was excessive, and should be reduced to the amount specified by him in his order, it was entitled to have a new trial if defendant in error refused to remit the amount required by the court, and, while in one sense, it may be said that this act of the court is in favor of plaintiff in error in that its result is to reduce the *191 amount of the judgment against it, it is not, however, the order plaintiff in error was entitled to.
Kennon v. Gilmer, supra, is an action in which the facts are somewhat similar to the facts in this case. That action arose in one of the district courts of the territory of Montana and resulted in a judgment for damages in the sum of $20,750 in favor of plaintiff. On appeal to the Supreme Court of the territory that court held the judgment to be excessive, and, without giving plaintiff an opportunity to remit, reduced the judgment of the inferior court from $20,750 to $10,750. From the judgment of the Supreme Court of the territory of Montana both plaintiff and defendant appealed to the Supreme Court of the United States, and that court, in passing upon the action of the territorial Supreme Court, said:
"The defendants were prejudiced, because, if the judgment for the lesser sum had been conditional upon a remittitur by the plaintiff, the defendants, if the plaintiff had not remitted, would have had a new trial generally; and if the plaintiff had filed a remittitur, and thereby consented to the judgment, he could not have sued out a writ of error, and the defendants would have been protected from the possibility of being obliged in any event to pay the larger sum, whereas upon the absolute judgment entered by the court without any election or consent of the plaintiff, the plaintiff had the right to sue out a writ of error; and he availed himself of that right, and docketed his writ of error in this court before the defendants docketed their writ of error. The defendants were thus put in the position of being obliged to contest the plaintiff's writ of error in order to defend themselves against being held liable for the larger sum, as the plaintiff contended that they must be upon this record."
In the case at bar, when the court entered judgment for the lesser sum, if plaintiff in error had not appealed, defendant in error had the right of appeal, and has availed himself of it by his cross-appeal herein, and plaintiff in error would have been compelled to defend against defendant in error's appeal in order to prevent being held for the larger sum on appeal, for which plaintiff now contends in his cross-appeal.
We have examined carefully the evidence in this case and *192 cannot say that the trial court erred in his conclusion that the verdict was excessive. The cause will be reversed and remanded with directions to grant a new trial, and that the cost in this court be taxed equally against the parties.
All the Justices concur.