Pembroke v. Hannibal & St. Joseph Railroad

Philips, P. J. — This is an action for personal injuries. The petition alleges that defendant owned and managed the bridge spanning the Missouri river at Kansas City; that over it, it ran trains of cars, and alongside of the railroad track thereon there was a pass-way for vehicles and foot passengers, to travel over on payment of the required fare. The plaintiff was in the employ of defendant, at the northern end of the bridge approach near Harlem station, and had a pass from defendant, which permitted him to pass over this bridge without paying any fare. In passing over the bridge in the night-time, he fell and received an injury by one of defendant’s trains of cars running over his hand, whereby he lost two of his fingers. The petition charges that this falling and injury resulted from the negligent construction of the passway, especially when trains were passing thereon, for want of sufficient pass-way between the track and the edge of the bridge, and for want of any barrier between the railroad track and footway; and further that' defendant, at the time in question, was guilty of negligence in suffering an accumulation of snow and ice on the footway, making it especially dangerous to such footmen. The answer, after the general issue, tendered a plea of contributory negligence. Plaintiff had judgment for five hundred dollars. I. The first contention of appellant is, that as plaintiff held, and was at the time using, a pass from defendant, and was not a passenger for hire, he is to. be regarded as a mere licensee upon defendant’s private premises, to whom the defendant was under no obligation to provide a reasonably safe way. The premise assumed for this proposition is false. This bridgeway was a public highway. While in a certain sense it was defendant’s property, yet it held and operated it under a franchise granted by the public, or sovereign power, [68] for the purpose of a public roadway, for the transportation of passengers over the river. As such defendant was under as much obligation to keep it in a reasonably safe condition for public travel as if it had been a ferryboat. The public had a right to go upon it as passengers, subject to the condition of paying toll, so long as defendant kept it open, and the defendant -would have no right to exclude from its legitimate use any citizen offering to so go thereon. In this respect it is wholly unlike the private premises of a citizen, — not maintained for the public, or an uninvited person thereon not having business with the proprietor. 1 Thompson on Negligence, 317; Frankfort Bridge Co. v. Williams, 9 Dana, 403; Penn. & O. Canal Co. v. Graham, 63 Pa. St. 290. II. The pass held by the plaintiff is not set out in the record furnished us. The evidence merely shows that plaintiff had a pass from defendant which permitted him to go over this bridge without paying the customary toll. It does not appear that it had any conditions or limitations attached thereto. In this respect, therefore, we perceive no legal difference in the mutual rights, duties and obligations of the parties, other than exist between a common carrier and a passenger without hire. This plaintiff was an employe of defendant; and, as is not unusual, the company had given him a pass over its .road-bridge. In such case it is as much bound in its duty towards the passenger as if it had received him for pay. Williams v. Bridge Co., 4 Pick. 344; Steamboat v. King, 14 How. 468; Wilton v. Railroad, 107 Mass. 108; Lemon v. Chanslor, 68 Mo. 357; Sherman v. Railroad, 72 Mo. 65; Cooley on Torts, 685, 686. III. There are two grounds of negligence imputed to defendant. One was the negligent manner of constructing and managing the passway for footmen; the other was in negligently suffering snow and ice to accumulate and remain upon this passway. Whether such facts existed, and whether either, or both of the [69] alleged causes combined, caused tbe injury, were peculiarly questions of fact for the jury. Unless tbe record presented to us purports to contain all the evidence on this issue, we cannot say but tbe whole of tbe evidence may have well supported tbe verdict. The presumption is always in favor of the verdict. Tbe appellant has not set out in tbe abstract of tbe record tbe evidence; and we are left only to conjecture from mere statements and deductions drawn by counsel as to what tbe proof was. In such case we must assume, in favor of tbe verdict and tbe action of tbe trial court, that there was evidence sufficient to support tbe verdict and judgment. IY. Appellant claims that tbe plaintiff at tbe time of bis injury was drunk. This fact respondent denies. Accepting all that appellant has presented to us as correct, it was a disputable fact; and as such it was for tbe jury to determine. Tbe plaintiff denied that be was drunk, and testified that be was sober and cautious. It would have been error for tbe trial court to have withdrawn the issue from tbe jury. Tbe instructions given fully and fairly submitted this question to tbe jury. We are concluded by their verdict. Y. Appellant further contends that plaintiff was guilty of contributory negligence in venturing upon tbe bridge, knowing tbe condition of the footway, and that be unnecessarily took tbe risk. There is authority for saying, that, if in fact, tbe passway, on account of the ice thereon, was unsafe for a footman and in a dangerous condition, it was an act of inexcusable negligence on defendant’s part to permit a passenger to enter upon it without warning. Randall v. Proprietors, 6 N. H. 147. We cannot say, from tbe record before us, that tbe ice on this bridge was sxrcb as to make it palpably dangerous to tbe sense of a traveler. If it was only apparently so, and tbe defendant was permitting passengers to go on tbe bridge without warning, they would have a right to proceed, exercising a degree of care and vigilance commensurate with tbe apparent danger. Loewer v. City of Sedalia, 77 Mo. 431; Buesching v. St. [70] Louis Gas Co., 73 Mo. 220. This issue was fully submitted to the jury .under an instruction framed by defendant, which is all it can ask. . That instruction is as follows: “9. The. plaintiff admits that he knew of the presence of the ice and snow on the bridge, and that he saw and knew, that a train was approaching him, and knew that if he continued to go forward, he would have to walk in close proximity to the passing train. The jury are instructed that having this knowledge, the plaintiff was bound to take notice of all the dangers reasonably to be. expected from an attempt to go forward along an icy bridge, in the night-time, in close proximity to a moving train, and it devolved on him to use such ordinary care and prudence as was commensurate with the position in which he was placed, and if by the exercise of such care and prudence he could have so conducted himself as to have avoided the injury complained of, he cannot recover.” Other minor questions are raised by counsel, but they are not of sufficient merit to justify review. With the concurrence of the other judges the judgment is affirmed.