179 Ky. 207 | Ky. Ct. App. | 1918
Opinion of the Court by
Affirming.
The village of Utica contains from three hundred to four hundred inhabitants. One branch of the Louisville & Nashville Railroad passes through the village, in a direction from north to south. The railroad company, at this place, maintains a building for a depot and ticket office. The lot upon which the depot building is situated is rectangular, in shape, and the depot building is situated near the southeastern comer of the lot. The right of way, upon which the railroad is located, passes immediately in front of the depot building and along the east side of the depot lot to the northern boundary line of the lot. A public highway, which runs from the east to the west, is the northern boundary line of the lot, and, at this point, the railroad track crosses the public highway. Another public highway, which intersects the one above mentioned, at the northwest corner, of the lot, extends toward the south the entire length of the' lot and forms its eastern boundary line. The southern boundary line of the lot is parallel with its northern boundary, and is a short space to the-south of the depot building. The lot to the north and west of the building is vacant and unoccupied, except at certain intervals of time, piles of railroad ties are placed upon it. A wagon and carriage road leads across the lot from its west side to the depot building, and probably certain footpaths cross the lot from that side to the depot. The land of the entire vicinity, including the land upon which the village is situated, is low and flat and at wet seasons given to rain, and the northern end of the lot, upon which the depot is located, becomes wet and muddy, but what extent of the lot is thus affected does not, from the evidence in the transcript, appear. The chief business places, as well as residences, in the village, are in a direction north east of the depot and continue along the highways to the north and to the west and southwest of the; depot. A ditch several feet in depth crosses the
(a.) There is a considerable discussion, in the briefs, as to the relations, which the appellant bore to the railroad company, at the time of his injury. The appellant insists that he occupied the status of a passenger, and that the railroad company owed him the same care
(b.) That appellant was not a passenger, there can be no doubt. According to his own statement, he was merely intending to become a passenger after he should arrive at the depot.- As a general rule, to become a passenger upon a common carrier, there must first exist a contract for that purpose between the individual and the carrier or else such circumstances must exist from which the law will imply a contract, although when one has once become a passenger and the relation is established, the requirements, of the carrier, do not altogether arise from any contractual relations, but arise by implication of law from grounds of public policy, but, before the relation can be established, there must be an offer to become a passenger, either expressly, or facts must exist from which the offer can be implied, and there must be an acceptance of the offer, either expressly or by implication from the facts and circumstances. 4 R. C. L.
(c.) If, however, the pathway, which the appellant was traveling, at the' time, he received his injury, Was not in a reasonably safe condition for his use, and was a way, which had been established and set apart by the railroad company for the use of passengers and persons having business with it, and he was using ordinary care for his own safety, at the time, and the railroad company had negligently allowed the path to become unsafe and his injury resulted from such negligence, his status is, as favorable to him, as if the relation of passenger had already been established between him and the company. He was intending to take a train for Owensboro, which would leave the depot at Utica within half an hour. His purpose was lawful and the business legitimate and of advantage to both him and the railroad company. A railroad company is obligated to use reasonable care to maintain its depot, platforms and such portions of the depot premises as are necessarily or customarily used by the passengers, and the approaches to them, in a reasonably safe condition for their use, and is liable to them in damages for any injury resulting to them, from a failure to perform its duty. L. & N. R. R. Co. v. Turner, 137 Ky. 730; L. & N. R. R. Co. v. Keller, 20 R. 957; L. & N. R. R. Co. v. Ricketts, 18 R. 687; L. & N. R. R. Co. v. Smith, 9 R. 404; L. & N. R. R. Co. v. Hobbs, 155 Ky. 130. The railroad company, having established the station at that place for the reception and discharge of passengers from its trains, thereby extended an invitation to persons to approach its depot for the purpose of becoming passengers. It owes the same duty to one, who approaches an established depot to become a passenger, within a reasonable time after arrival, with regard to using care to maintain the depot, platforms and approaches thereto, and such portions of the depot premises as are necessarily or customarily used by the passengers in a reasonably safe' condition for use, as it owes to him, with whom the relation of
“But no part of the path appellee was traveling, after she left the premises about the depot, had been set apart by the company for the use of the public or for the use of persons having business at its depot buildings, nor had it invited the public to use this passway. It
“And so we think that appellee’s right to recover, if any there be, must rest entirely upon the naked 'grounds that the company, on account of the long continued and habitual use of this passway by the general public, assumed the duty of keeping it lighted in some way or having the turntable protected by lights or barriers, so that persons using the passway might not thoughtlessly or inadvertently fall into the excavation as appellee did. If the company did not owe to appellee as a licensee this duty, then she is not-entitled to a recovery.”
The liability of a railroad company to one, who has been a passenger and is proceeding from the depot premises to his home and the liability to one, who is proceeding to the depot for the purpose of becoming a passenger is not different. In the instant case, the pathway was upon the railroad right of way, and the point of the injury was from one hundred and fifty to two hundred and twenty-five feet from the depot, but not upon the depot premises, and in the case of Hobbs, supra, the pathway traveled was upon the railroad right of way and the point of injury was three hundred and forty-five feet from the depot, and in both cases, however, they were upon the property belonging to the railroad, and which was connected with the depot premises by paths, which ran upon the right of way of the railroad, and continued thereon to the depots. The appellant being at the time and place of his injury a licensee, must take the premises of the licensor as he found them, and can not recover damages on account of an injury received by him because of the unsafe condition of the path upon the right of way.
Hence, the judgment is affirmed.