Montgomery & Eufaula Railway Co. v. Thompson

STONE, O. J. The right to have a struck jury, in a case like the present, is secured by the statute to either party who — 456 — demands it. — Code of 1876, § 3018. In the purview of this statute, there are but two parties, the plaintiff and the defendant. The statute has made no express provision for cases where thei’e are more plaintiffs, or more defendants, than one. Each litigating side is regarded as a suit, no matter how many persons may compose it. The right to have such jury, being given by statute, the opposing party can not defeat it, either by divided counsels, or by non-action. The court may, if necessary, compel its observance, or punish its non-observance; and in cases where there are more defendants than one, and the grounds of defense are different, if counsel can not agree on the jurors they would strike, we can conceive of no solution of the difficulty more just and simple, than that adopted by the Circuit Court. To hold otherwise, would be to deny to the plaintiff a clear statutory right, upon a mere technicality. The depot-building and depot-yard, or grounds annexed, known as the “ Union Depot ” in Montgomery, are the property of the South and North Alabama.and the Louisville.and Nashville railroad companies. The Montgomery and Eufaula Railway Company has no interest in the property. It has purchased the common use of said depot property, to the extent that its trains come on the depot-yard for the purpose of receiving and discharging its passengers and their baggage, and receiving and delivering the mails; and it has also the common use of the waiting-rooms, and the ticket and baggage-offices, to the extent they are necessary for the successful running of its passenger-traius. For this use it pays a stipulated rent. Thus using the depot, we do not hesitate to declare that the M. & E. Railway Company rests under the same duties to the public, in relation thereto, as if it owned the property in fee. There is a common duty resting on all persons, artificial as well as natural, who own real estate on which the public is expressly or impliedly invited to enter, that it shall be kept free from traps and pitfalls; and if this duty be neglected, and injury results therefrom to any person, the person suffering by such trap or pitfall may recover damages for the injury. This is a general rule of society, crystalized into law. It partakes of the nature of a public nuisance done or suffered, which inflicts special injury on an individual. To a suit for such injury, it is no defense that the injury was not intended. Human conduct must be tested by its known general, or ordinary consequences. — Alger v. City of Lowell, 3 Allen, 402; McKone v. Mich. Cen. R. R. Co., 13 Amer. & Eng. R. R. Cas. 29; John v. Bacon, L. R., 5 C. P. 437; Indermaur v. Dames, L. R., 2 C. P. 311; Smith v. London & St. K. Dock Co., L. R., 3 C. P. 326; McDonald v. Chi. & K. W. R. R. Co., 26 Iowa, 124 ; s. c., 29 Ib. 170; Knight v. P. S. & P. R. R. Co., 56 — 457 — Me. 234; Bennett v. L. & N. R. R. Co., 1 Amer. & Eng. R. R. Cases, 71, and note; Gillis v. Penn. R. R. Co., 59 Penn. St. 129; Beard v. O. & P. R. R. R. Co., 48 Verm. 101. The foregoing rule, however, does not apply to places strictly private, or where persons are neither expected, nor expressly or impliedly invited to go. — Howland v. Vincent, 10 Metc. 371; Kohn v. Lovett, 44 Ga. 251; Knight v. Abert, 6 Penn. St. 472; Ind. Cen. Railway Co. v. Hudelson, 13 Ind. 325. All the property of a railroad company, including its depots and adjacent yards and grounds, is its private property, on which no one is invited, or can claim the right to enter, save those who have business with the railroad. Under this classification, however, we must include attending friends and protectors, who accompany friends to the train, to aid them in getting on, in procuring tickets, and in checking baggage, and kindred services. The same license is accorded to protecting friends, when the traveller is to leave the train. To persons filling these classes, the railroad corporation owe special obligations of duty,' different from those due to the general public. While the former come by invitation, express or implied, the latter are mere pleasure-seekers, or are prompted by curiosity. For the use and comfort of the former class, railway companies are bound to keep in safe condition all portions of their platforms, and approaches thereto, to which the public do or would naturally resort, and all portions of their station-grounds reasonably near to the platform, where passengers, or those who have purchased tickets with a view to take passage on their cars, would naturally or ordinarily be likely to go. Within these boundaries, a defect of structure which is likely to, and does cause injury, or any other trap or pitfall producing a like result, will fasten a liability on the railroad owing the duty. Of similar obligation to this primary class, is the duty to provide safe waiting-rooms, and to keep the depot and platform well-lighted in the night-time. — 1 Thompson on Negligence 313, 314, 315; Stewart v. L. & G. N. R. R. Co., 2 Amer. & Eng. R. R. Cas. 497; St. L., I. M. & S. R. R. Co. v. Cantrell, 8 Ib. 198; Coleman v. Eastern Counties Railway Co., 4 Hurls. & Nor. 781; Gillis v. Penn. R. R. Co., 59 Penn. St. 129 ; Mc-Kone v. Mich. Cen. R. R. Co., 51 Mich. 601; Seymour v. C. B. & Q. Railway Co., 3 Biss. 43. The rule of obligation is essentially different, when the asserted rights of mere idlers, or sight-seers, are presented. To such the corporation owes nothing, beyond the observance of the duties of good neighborhood. Among these may be prominently classed the universal duty of doing no willful or wanton injury, and of erecting or continuing on or near its platform or approaches, to which the public may be expected — 458 — to go, no nuisance, trap or pitfall, from which personal injury is likely to ensue. — 1 Thompson Neg. 313, 314; B. & O. R. R. Co. v. Schwindling, 8 Amer. & Eng. R. R. Cas. 544, and note; Frost v. Gr. Tr. R. R. Co., 10 Allen, 387; Morrissey v. Eastern R. R. Co., 126 Mass. 377; Nicholson v. Erie Railway Co., 41 N. Y. 525 ; Sutton v. N. Y. Cen. & Id. R. R. R. Co., 66 N. Y. 243 ; Gillis v. Penn. R. R. Co., 59 Penn. St. 129; P. Ft. W. & Chi. Railway Co. v. Bingham, 29 Ohio St. 364. There is another important principle, which may exert some influence in this case. If one, who complains of an injury suffered at the hands of another, has, through intention, recklessness, or carelessness — that is, want of ordinary care or attention — contributed proximately to the injury he complains of, this is a full answer to any right he could otherwise maintain on account thereof. — Memphis & Charleston R. R. Co. v. Copeland 61 Ala. 376 ; Sh. & Redf. on Neg. § 323 ; Forsyth v. B. & A. R. R. Co., 103 Mass. 510; Seymour v. Chi. O. & Q. Railway Co., 3 Piss. 43; Frost v. Gr. Tr. R. R. Co., 10 Allen, 387. In the case of Forsyth v. B. & A. R. R. Co., supra, it appeared that the plaintiff, a passenger, alighted from defendant’s cars at night, at a station, on one of two platforms extending along each side of the track to a highway (which, as the plaintiff knew, crossed the railroad), and having a step at the end next the highway; and that, instead of walking along the platfarm, he voluntarily stepped from it, with the intention of going obliquely across the track to the highway, and, in stepping off, he fell into a cattle-guard which had been dug across the track, and was injured; that the night being very dark, he felt with his feet to find the edge of the platform, but did nothing to ascertain what would be found on stepping from the platform. .Held, that he was not in the exercise of due care, and could not recover. The proof in this case shows the following facts, upon which there is no controversy : The Union [passenger] Depot is at the foot of Commerce street, and is approached alone from that street. The end of its platform rests on Commerce street about one hundred feet, pointing up the river, and it extends back, down the ri.ver, about two hundred feet. On the side of the platform farthest from the depot runs the Alabama river, with a precipitous, bluff bank. The ticket-office, waiting and baggage-rooms are on the side farthest from the river, and the platform is kept well lighted, in the night-time. No complaint is urged that the platform and its approaches were not in good order and well lighted. The plaintiff was acquainted with the locality. The track on which the Montgomery and Eufaula Railway Company received and discharged its passen — 459 — gers was nearest the depot-building, and farthest from the river. The plaintiff came in on the M. & E. railroad train, after night-fall, and left the train at the depot, without injury or complaint. As we have said, there was no controversy up to this point. The testimony of the plaintiff, not contradicted, is, that soon after leaving the train, he had occasion to seek a retired spot, and inquired of a person whom he did not know, if he knew where there was a privy. He made no other inquiry. The person inquired of pointed in a direction diagonally across the platform, towards the river side of the lower end of the platform, and told him there was one there. He went in search of it, missed the place, wandered into the dark beyond and below the platform as much as fifty feet or more, and fell over the bluff,-suffering very serious injury by the fall. This is the gravamen of the present suit. There is proof that there was a privy in the direction indicated, but it was without a light, and was hidden from the light of the platform by an intervening house. It is manifest, if there is any fault any where growing out of these facts, it is a mere non-feasance, without any of the elements which constitute a trap or pitfall. This, in a proper case, will fix a liability on the railroad, whose passenger is thus injured. It can extend no farther. No other railroad company owed tlie plaintiff any active duty, and hence could commit no tort in failing to do what it was under no obligation to. do. There is no ground of recovery against either the South and North Alabama Railroad Company, or the Louisville and Nashville Railroad Company. As to them, plaintiff was a mere stranger or intruder. It is contended for appellee, that it was the duty of the Montgomery and Eufaula Railway Company, whose passenger he was, to provide such accommodations for its customers; and the fact that none such was visible, lighted, or could be found, renders that road liable for the injury suffered in searching for it. It may be that, in cities and towns, such provision should be made for the travelling public, getting on and off trains. Such retreats, however, are not usually placed in public places, or lighted, except within inclosures, such as public hotels, cars &c. Too great publicity would stamp them somewhat with the character of a nuisance. It is now made the duty of railroad companies to provide such accommodations, whenever thereto required by order of the Railroad Commission.' — Act approved February 23d, 1*883. — Sess. Acts 154. This statute was enacted after the occurrence of the injury complained of in this suit, and may be treated as a legislative intimation, that, theretofore, the duty was at least doubtful. Counsel have made diligent search for authorities bearing directly on this — 460 — question, and have found none. Their very careful and able briefs prove this. We ourselves have found no unerring guide for our pathway. We are, therefore, led to infer the present case is oné of first impression. Toomey v. London, B. & S. C. Railway Co. (3 Common Bench, 146), and McKone v. Mich. Cen. R. R. Co. (51 Mich. 601), come nearest to the question, of any cases shown to ns; but each of those cases went off on the doctrine of traps aud pitfalls on grounds adjacent- to the depot, where passengers would be likely to go. ' A remark, in the case of Toomey, supra, by Sir Edward Yaughan Williams, one of the justices — leading auther of the great work on Executors and Administrators — shows that in England, as well as in this country, juries need to be cautioned, when charged with inquiry of damages against railroads, or other supposed wealthy corporations. Speaking of slight and shadowy testimony of negligence, on which plaintiff claimed the right to proceed before the jury (he had been non-suited), that learned jurist said : “Every person who has had any experience in courts of justice knows very well, that a case of this sort against a railway company could only be submitted to a jury with one result.” The precise question in this case is, not that no such accommodation had been furnished, but that it was not sufficiently lighted, or made visible, so that a passenger could, without danger, find it. We'think the plaintiff has disarmed himself of the right to raise this question. Instead of inquiring of some railroad employee, he made inquiry of a mere stranger, and took upon himself the risk of finding the place. This, when, having knowledge of the place, he must have known, if he reflected, that he was near the bluff of the river. To put the question in its mildest form, we think the plaintiff’s negligence and inattention contributed proximately, if it did not cause the injury he complains of.— Welfare v. London & B. Railway Co., L. R., 4 Q. B. 693; Crofter v. Met. Railway Co., L. R., 1 Com. Pl. 300. We have not considered the question of the railroad’s duty to provide such accommodation prior to, and independent of our statute on the subject. Be that as it may, that enactment has imposed the duty on the railroads, when thereto required by order of the Railroad Commission, and only when so required. Nor have we inquired whether plaintiff’s rights as passenger had ceased, when he was safely discharged from the train. — Schouler on Bailments, 649 ; Thompson on Carriers of Passengers, 412 et seq. Upon these questions we decide nothing. On the undisputed testimony in this case,-the railroad com — 461 — pany was under no obligation to place a fence or guard at the bluff of the river, from which the plaintiff fell. We need not apply these principles to the several rulings of the Circuit Court, as what we have said will furnish a sufficient guide for another trial. Beversed and remanded.