27 Wash. 472 | Wash. | 1902
The opinion of the court was delivered by
This is an action for damages brought by appellant against respondent. The complaint alleges that the respondent is in the possession of a certain depot and depot grounds within the city of Spokane, which it operates and controls, on the line of its railroad passing through said city; that the respondent, for its own convenience, and for the convenience of its passengers, did, on the 13th day of December, 1898, maintain a sidewalk upon its said line of road, and in front of said depot; that on said date the respondent negligently and carelessly permitted snow and ice to accumulate and remain upon said wall*:, and in front of said depot, and carelessly and negligently permitted its engines to exhaust steam upon said snow and ice, and thereby caused said walk to become slippery and icy on top of the snow, and dangerous to the public and persons having business with respondent at that place; that at about the hour of 6 o’clock in the evening of said day appellant, desiring to travel upon respondent’s regular passenger train going east, went to said depot for the purpose of purchasing a ticket for passage upon said train, and that upon inquiry he was informed by the agent in charge of the depot that the train would not leave'until the next morning, and thereupon he purchased a ticket for passage over respondent’s road from Spokane to Milan, Wash., and at
Respondent moves to strike the statement of facts, for the reason, as urged, that the court has settled two separate and complete statements which are inconsistent and conflicting with each other. From the record it appears that appellant duly filed a proposed statement. The evidence is not set out in the form of questions and answers as taken by the stenographer, but is set forth in narrative form, and purports to contain all the material facts, matters, and proceedings which occurred at the trial. In due time respondent filed what is denominated an amended statement of facts, proposed by respondent as a substitute for tlie original statement proposed by appellant. In the latter proposed statement the evidence is also set out in narrative form, and purports to be a complete statement of all the evidence, and of all that occurred at the trial. The certificate of the court is to the effect that the matters and proceedings embodied in the appellant’s proposed statement, and in the respondent’s proposed amended statement, combined, are matters and proceedings which occurred in the cause, and they are made a part of the record. The court, in its certificate, also refers to the combined statements as “the foregoing statement,” thus treating them as a unit, and as comprising one statement in the case. Respondent contends that appellant’s proposed statement is distorted, garbled and incomplete; and appellant makes a like charge against the amended statement proposed by respondent. It is manifest that this court has no means of determining the
The assignments of error are based upon the court’s instructions, and upon its refusal to instruct as requested by appellant. Counsel differ materially as to the law applicable to the facts in issue in this case. The testimony discloses that the appellant is a farmer, who resides in the country, seventeen miles distant from. Spokane. On the day he received his injuries he drove a team of horses from his home to Spokane, expecting to attend to some business there, attend a lodge in Spokane that night, and the next-day drive with his team from Spokane to Milan, Wash., where he desired to attend to some business. On the way to Spokane one of his horses became lame, and upon reaching there he took his team to a stable and decided to leave
It is the contention of respondent that it was not in possession or control of the depot premises at the time; that the ownership of the premises was in another company, and the possession and control thereof were in a receiver of that company, who was operating it as an independent property, distinct from -the management and operation of respondent’s railroad; that the respondent had no agent in charge, and had no connection with the premises other than to receive and discharge at that place its passengers, baggage, and express matter; that respondent’s duties and relations to the public and its patrons at that place were confined to the times of the arrival and departure of its trains, and that, since the appellant did not go there with the purpose of taking, the train at that time, but only to ascertain the time the train would leave, and to purchase a ticket from the agent of the depot company, his business was therefore entirely with the depot company, and no negligence can be attributed to respondent for the condition of the premises at that time. It is further urged that respondent was under no obligation to sell its own railroad tickets, but had the right to place such tickets in the hands of any person or corporation, and that such person or corporation undertaking the sale of such tickets must assume the duty of providing safe premises for the sale of the same, and under such circumstances respondent is under no duty to a ticket purchaser upon which' negligence as to the condition
“Any person or corporation selling or offering to sell to the general public any article, such as a railroad ticket, assumes the duty of providing, during reasonable business hours, reasonably safe premises Upon which to transact such business, and, if necessary, reasonably safe ways to and from said place of business.”
“I charge you, however, that the defendant did not necessarily have to- sell its own railroad tickets, but had the right to place its said tickets for sale in the hands of any person or corporation who, under such circumstances, would assume the duty of providing safe premises for the sale of same. If you should find from the evidence that at the time plaintiff was injured, if he was injured, his only business at said depot was to buy a railroad ticket for a trip on defendant’s road, and you should further find from the evidence that said tickets were then and there being sold by some other person or corporation, then and in that case the plaintiff cannot recover from the defendant, and you should find for the defendant.”
“A railway ticket is property which may be lawfully sold by any one in whose hands it is placed by the railway company with authority to dispose of the same, and the railway company will not necessarily be required to keep the premises where such persons may conclude to sell such tickets, or the approaches to such places, in repair. I instruct you that the mere fact, if it is a fact, that the defendant railway company allowed a receiver of the United States court, by himself or by his agent, to have possession of the defendant company’s tickets, and to sell them to persons desiring to take passage upon its railway line, would not of itself necessarily make it a duty of the defendant railway company to keep the premises occupied by the receiver in the sale of such tickets, or the walks or approaches to the place where such tickets were so sold by such, receiver- or his agents, in repair.”
The evidence shows, and respondent so concedes in its brief, that appellant went to the depot for the purpose of ascertaining at what time the train -would leave, and also to purchase a ticket. He had made inquiry up-town as to the train time, but, not getting the desired information, what was more reasonable than that he should go to the depot from which the train would start, in the expectation that some one representing the respondent company would there give him authoritative information ? Again, from whom could be expect more accurate information upon that subject than the person at the ticket window ? He sought the information from that person, received it, and then purchased his ticket. It is certainly reasonable that some one should be stationed at the place where respondent’s trains arrive and depart to give information to the public upon as important a matter as the time of the arrival and departure of trains. If the ticket agent was in no sense the agent of respondent, but only the agent of the receiver of the depot company, then from whom could appellant have procured authoritative information upon so important a subject? Certainly the relations of
“You are instructed that if you find from the evidence m this case that the sidewalk or platform upon which plaintiff fell and was injured, if you find that he did fall md was injured, was at that time in the exclusive possession and control of the receiver of the United States court, then your verdict must be for the defendant. You are instructed that the gist of this action is negligence; that is to say, the plaintiff charges that the defendant carelessly and negligently permitted snow and ice to accumulate upon a sidewalk, platform, or approach to its depot in the city of Spokane, and I charge you that unless you find from the evidence that the defendant was at that time in the possession and control of such sidewalk, platform, or approach, then your verdict must be for the defendant. You are instructed that, to entitle the plaintiff to recover in this action, it is not enough that you should believe from the evidence that the plaintiff, at or about the time alleged in the complaint, fell upon the sidewalk, platform, or approach*483 mentioned, in tlie complaint in this action, and was injured thereby, unless you further find that the plaintiff was at that time exercising ordinary and reasonable care for his own safety, and also that his fall was a result of the snow and ice upon the platform or approach at the place where the plaintiff sustained such fall; and also that such sidewalk, platform, or approach was, at the time plaintiff fell, within the possession or under the control of the defendant.”
Thus it will be seen that the court left the jury to find for the respondent if they found that the premises were under the control of another, without regard to whether respondent used the premises for its depot purposes. This, we think, was error. In Cogswell v. West St, etc., Ry. Co., 5 Wash. 46 (31 Pac. 411), this court, at page 51, said:
“It is a well-established principle of the law governing common carriers which obtain certain rights or franchises from the public by either special or general legislation on the part of the state or municipal corporations, and upon whom in return therefor are cast the burden of certain duties, that they cannot, by means of any lease or other contract for the operation of their means of transportation or the management and control of their tracks and right of way, relieve themselves from liability for violations of contracts or the public law, or for torts committed by their lessees or the parties with whom they specially contract.”
Again, on pages 52, 53, the court further said:
“Out of a great number of cases which were cited to our attention by both sides, we find but two which are directly pertinent upon this point. The first is Cunningham v. International Railroad Co., 51 Tex. 503. In that case a passenger was carried by a construction train operated by independent contractors for the building of the road, without the knowledge of the railroad company, and against its express prohibition, and it was held that the railroad company was not liable. The other case is that of Lakin v. Willamette, etc., R. R. Co., 13 Ore. 436 (11 Pac.*484 68), which is a case on all fours with this one, with the exception that there the railroad was an ordinary steam railroad. The court said: ‘The defendant may contract for the construction of its road, but it cannot escape liability for injuries to passengers caused by the negligence of another which it permits or allows to use its road for the purposes of traffic. In such case, as regards the public, those who operate the road must be regarded as the agents of the corporation. This doctrine is in accordance with sound public policy; for it would certainly be against the public interest to allow corporations, invested by the state with important franchises and privileges, and incorporated to discharge a public duty as well as to subserve a private benefit, to shirk its responsibilities or shift its duties and liabilities to other, perhaps, irresponsible parties. Except as authorized by statute, it cannot relieve itself from responsibility for the exercise of its corporate powers and franchises.’ The two cases referred to, it seems to us, express the correct principle applicable in such instances, and under that principle there was no error on the part of the court as to the point in discussion.”
The defense in the above case was that of negligence of a construction company employed to equip the road with electric appliances, but passengers were being carried upon the same car that carried the construction material, and it was held that the company could not be relieved from liability because the negligence was primarily that of the construction company. Culling from the first quotation the statement of a general principle which seems particularly applicable here, we have the following:
“They cannot by means ... of any contract for the operation of their means of transportation relieve themselves from liability for violation’s of contracts or the public law, or for torts committed by the parties with whom they specially contract.”
Respondent had a contract or arrangement with the depot company by which its “means of transportation”
“The facts disclosed by the pleadings, and by the demurrer conceded to exist, seem to bring this case within the rule — founded in justice and necessity, and illustrated in many adjudged cases in the American courts — that the owner or occupant of land who, by invitation, express or implied, induces or leads others to come upon his premises for any lawful purpose, is liable in damages to such persons, — they using due care, — for injuries occasioned by the unsafe condition of the land or its approaches, if such condition was known to him and not to them, and was negligently suffered to exist, without timely-notice to the public, or to those who were likely to act upon such invitation.”
There a railroad company and a steamboat company used the same premises for depot and landing purposes. A passenger in going to take a steamboat at night was injured by reason of negligently kept premises. The premises belonged to the railroad company, but the passenger’s business at that particular time was not with the railroad
Respondent is not relieved from liability on account of unsafe premises because the premises may át the time have been under the control of a receiver of the depot company. Respondent used the premises voluntarily, and it became its duty to provide a reasonably safe place for its patrons. If the receiver neglected to maintain safe premises, his negligence became the negligence of the respondent, because in law he was the agent of respondent, whose duty it was to maintain safe walks upon its depot grounds. In Pennsylvania Railroad Co. v. Roy, 102 U. S. 451, a passenger purchased from a railroad company a ticket over its line, and at the same time from a palace car company a ticket entitling him to a berth in one of its sleeping cars constituting a part of the train of the railroad company. In the course of transportation he was injured by the falling of a berth in the sleeping car in which he was at the time riding. It was held that, for the purposes of the contract with the railroad company for transportation, and in view of its obligation to use only cars that were adequate for safe conveyance, the palace car company, its conductor
“A railroad corporation is bound to make the approaches to their own depots and premises safe and convenient for passengers, and the public having business at such premises; and is bound to keep the same, and their landing-places, in a resonably safe condition for the convenient use of all who use their cars as a means of conveyance, and others who have a rightful occasion to resort there.” 1 Rorer, Railroads, 476.
Numerous cases are cited by the author. See, also: Buenemann v. St. Paul, M. & M. Ry. Co., 32 Minn. 390
We therefore think the instructions of the court heretofore set out were erroneous in the particulars herein discussed. The jury should have been instructed to the effect that respondent is not relieved from liability by the mere fact that another may have owned and controlled the depot premises; that if the respondent used and occupied the premises for depot purposes the duty rested upon it to see that such premises were safe.
The judgment is therefore reversed, and the cause remanded, with instructions to the court below to grant the motion for a new trial, with costs taxed against respondent.
Reavis, C. J., and Fullerton, Dunbar, Anders and White, JJ., concur.