Sweany v. Missouri, Kansas & Texas Railway Co.

ELLISON, J. Plaintiff was injured by stepping or falling between one of defendant’s freight box cars and its depot platform, while attempting to pass from the car to the platform at a little village called Tebbetts, after night. The negligence charged is not having the station building lighted, heated and open, and not having the platform lighted. Defendant’s demurrer to the evidence was overruled and the verdict and judgment were for plaintiff. Plaintiff went on a train from Jefferson City to Tebbetts. He was acquainted with Eeifsteck, who lived in the village, about 300 feet from, the depot, and he and a man named Davis, engaged a conveyance from Eeifsteck’s boys and, taking two of them along, the four started into the country. It was in March and while the roads were quite muddy, yet some of the witnesses thought it was freezing a little; at any rate the weather was stated to be “ cool and damp. ’ ’ While on the trip there was a mist or possibly little flurries [140] of snow. A quart of whisky was taken along by Davis and the party partook of this. The night was dark and they had several mishaps, in one of which the double-trees were broken and the vehicle turned on its side against a bank. Notwithstanding this condition of things, they escaped injury and got safely back to Tebbetts between eleven and twelve o’clock p. m. Plaintiff and Davis intended to leave that night on a train passing there at 1:40 a. m. They, still in company with the Reifsteck boys and presumably after putting away the team, went at 11:40 to the depot to wait for the train. The platform was not lighted and the depot building was dark. It was still “cool,” though there was no rain or snow falling. A hotel, which appears not to have been kept open after bed time, was near-by. They, however,' noticed a box freight car by the side of the platform on one side of the depot building. The car was occupied by a man who had some articles of property he was shipping. .The man had a lantern. So, though uninvited, they, including the Reifsteck boys, stepped into the car, there to wait for the train. After a time plaintiff half reclined on some straw in a corner of the car. At 1:40 the whistle of the incoming train was heard. Plaintiff testified that though “drowsy” he was not asleep, and got up and proceeded .to leave the car. Others said he was asleep and was awakened. The bottom of the car and the depot platform were flush,— that is, on a level, — and about fifteen inches space between; yet plaintiff, in attempting to step onto the platform, missed and went in between, striking' and breaking some of his ribs. He was well acquainted with the village, the depot, its surroundings, and knew it was not kept open and that lights were not kept through the night. Defendant’s demurrer to the evidence should have been. sustained. Defendant, ordinarily, was not lia [141] ble to plaintiff in bis approach to its station platform by way of or through a freight car standing at the station on one of its side tracks. It can be seen that plaintiff realized that this suggestion would stand in his way and he has sought to avoid it by attempting to show that defendant’s negligence in failing to have its station building open and lighted forced him into the car to protect himself from the weather, and thereby connected itself with his injury. There can be no negligence without a neglected duty and the duty must have been owing to the complaining party. It is therefore important to know when defendant’s duty to plaintiff began, if at all. A depot building is not maintained as a rooming house or lounging place. It is intended as a waiting room for passengers for the reasonable time which should be allowed passengers for coming to it and making ready to depart on an incoming train, or to wait for delayed trains. [Archer v. Ry. Co., 110 Mo. App. 349; Phillips v. Southern Ry. Co., 124 N. C. 123; Illinois Cent. Ry. Co. v. Laloge, 24 Ky. Law, 693.] Our statute (Sec. 3094, R. S. 1909) specifically requires that stations at crossings with other roads shall be kept lighted and heated a reasonable time before departure of trains. The first part of the section requires that railway carriers ‘ ‘ shall furnish sufficient accommodations for the'transportation of all passengers . ... as shall, within a reasonable time previous thereto, be offered for transportation,” etc. Whether this provision refers to waiting rooms, we need not enquire, since it is manifestly the duty of the carrier, aside from a statute, to keep its stations open, lighted and heated such reasonable length of time before the arrival of trains, as we have above indicated. [Sargent v. Ry. Co., 114 Mo. l. c. 355; Draper v. Railroad, 165 Ind. 117, 120.] In some states a penalty is provided if they are not opened and lighted one half [142] hour before the arrival. [Illinois Cent. Ry. Co. v. Laloge, supra.] The greatest time we have noted in any statute was in that of Texas, where one hour is named. [International & Gr. N. Railroad v. Pevey, 30 Tex. Civ. App. 460.] Plaintiff, though knowing there was no light or heat at the station at night, went to it two full hours before the train was due. He got into the freight car from his free choice and not from necessity. He had the Riefsteck boys with him and if he did not wish to arouse the hotel man, he could have remained in the nearby bam where the horses had been put away, until a few moments of train time. [Sandifer’s Admr. v. Ry. Co., 28 Ky. Law, 464.] Besides knowing the depot was not lighted when he went into the freight car, he knew it would not be when he would come out, for he stated he had taken a train there at other times. So, conceding that it was defendant’s general duty to have had its depot building open and lighted a reasonable time before the train was due, plaintiff is in no position to complain. His injury did not result from lack of light in his approaching the station in the regular and proper way. It came from his having voluntarily placed himself in what turned out to be a hazardous place. He went into that place without defendant’s invitation or fault, and he got out at his own risk. The judgment is reversed. All concur.