Metcalf v. Yazoo & Mississippi Valley Railroad

Mayes, C. L, delivered the opinion of the court. In 1908 J. B. Conly instituted suit against the Yazoo & Missippi Valley Raiboad Company for the purpose of recovering damages for injuries alleged to have been sustained by him, :some time in September of that year, by falling ixxto- an ex — 463 — cavation made by the company around its depot at Duncan, Miss., which, it is claimed, was negligently left open without warning light or safety guard. Conly alleges that he fell while at the depot for the purpose of taking passage on a train, due about 10 or 15 minutes after he entered the depot, and about 7:20 p. m. After the institution of the suit Conly died, and the .suit is prosecuted by the executor. The facts' are substantially as follows: Conly left Eound Lake, Miss., in a buggy about 5 o’clock, and drove to the town of Duncan, intending, as it seems, to take passage on the 7:20 p. m. south-bound passenger train on defendant’s road. After arriving at the town of Duncan he proceeded to the hotel to get supper. After supper, and 15 or 20 minutes before the train was due, he left the hotel for the'depot, with his grip in his hand and a mileage book in his pocket, having in view the purpose of taking passage on the train when it should arrive. It was the double purpose of Conly to deposit his grip in the •waiting room of the depot in preparation of his contemplated trip, and tiren to go over to the store of a Mr. Wynn, which was but a short distance from the waiting room, as he desired to speak to Wynn on a matter of business. Conly proceeded to the depot, and entered the waiting room safely, and after depositing his grip turned to go out to see Wynn, and as he stepped out of the door fell into an excavation in front of ■same, and sustained painful injuries, at least. It appears that the excavation was made by reason of the fact that the company was repairing its depot. The excavation seems to have been immediately in front of the waiting room entrance, and from three to five feet deep, and some two or three feet wide. Across this trench, and for the purpose of getting into the waiting room, some planks were placed leading into the door; but they were unguarded and without warning light. Conly said he could not see the excavation when he .entered, because there was no — 464 — light. As he entered, he says the light in the waiting room was-shining in his eyes and blinded him, and when he came out the light was behind him, and the excavation so close to the door that, while it was bright enough to make the gravel walk visible, it did not light up this excavation. It is not our purpose to intimate how serious were the injuries Conly received. That question is left to the jury. The question before this court is^ simply whether or not the facts make out a case of liability on the part of the company. The court below gave a peremptory instruction to' find for defendant, holding that Conly was not a passenger at the time of the injury, and from this action of the trial court an appeal is prosecuted by the executor. Let us first review the statutes of the state on the subject of the railroad’s duty in respect to its depots and waiting rooms. By section 4854 it is made the duty of every railroad to establish and maintain such depots as shall be reasonably necessary for the public convenience; and by section 4867 it is made the duty of every railroad to keep rooms open for 'the reception of passengers at least one hour before the arrival, and one half hour after the departure, of all passenger trains. Thus it is that the law requires that the railroads shall have depots, and that they shall make them comfortable and accessible at reasonable times to intending passengers. It would be useless for the statute to require the railroads to keep rooms open for the reception of passengers an hour before the arrival of the train, unless intending passengers could make lawful use of the rooms, within that limit of time, for any necessary or convenient purpose which is in furtherance of the bona- fide intention to become a passenger. This is the manifest 'purpose of the statute,, and the very object of having the waiting room open is to receive intending passengers and their hand baggage. When an intending passenger avails himself of the convenience which the law has established for his benefit, and which the railroad must. — 465 — provide, within a reasonable time before the arrival of the train his object being to facilitate and further his purpose to take passage, even though it be to place his hand baggage in the waiting room as a matter of convenience to himself and in furtherance of his ultimate object, such person, while on the depot grounds or in the waiting room, is a passenger, and entitled to' all the protection of a passenger, though he have a purpose to leave again before the arrival of the train on a matter of convenience, pleasure, or business. To hold other- ■ wise would place the rights of persons accepting the conveniences provided by law for their use in a precarious and uncertain condition under the law, and relieve railroads from a duty which they stand under to the traveling public, for which no sensible or just reason can be assigned. It is a matter of common knowledge that intending passengers use the waiting rooms for depositing their hand satchels, and such like, many minutes before a train is due to arrive. Some may loiter around the grounds and the platforms, while others may find it convenient and necessary to cross a street on a matter of business or pleasure; but because of this it is none the less the duty of a railroad to keep its grounds and rooms in a safe condition, both for the intending passenger who imprisons himself within the four walls of the waiting room and the passenger who is on the grounds for the purpose of relieving himself from the burden of his baggage in order that he may go out for some purpose, it being certain that both come to the depot for the ultimate purpose of taking a train. It is argued hy counsel for appellee that, before there can arise the relation of carrier and passenger, there must not only be an intent on the part of a person to become a passenger and to avail himself of the facilities offered by the carrier for transportation, but there must he an express or implied acceptance by the carrier of the person so intending as a passenger. Many — 466 — authorities are cited to sustain this proposition, and we find no fault with the law there announced; but the question is, What constitutes this acceptance ? Must the person go to the agent of the carrier and formally announce his arrival and intention to take passage ? Must the agent then and there formally accept such person, in order to establish the relation ? Clearly no such formality is required, in view of the fact that it is the lawful right of every citizen to establish this relation, with or without the consent of the railroad. The true rule is that, when the railroad has opened its waiting room for the reception of passengers as required by law, and any person intending to take passage on the train next to come has resorted to the depot in lawful furtherance of that purpose and in a proper condition to be received as a passenger, there arises from these acts, as a matter of law, the relation of carrier and passenger. The contention of counsel for appellee that the relation of carrier and passenger could not arise until after Conly had entered the depot grounds on his return from Wynn’s store is unsound and too narrow. Conly had gone to the depot to deposit his satchel in the waiting room only fifteen minutes before the arrival of his train. His resort to the depot was for a lawful purpose and in furtherance of his intention. The depot was open for the reception of passengers and for their convenience. If he had hunted up the agent, and told him that he contemplated taking the next train, and desired to place his baggage in the waiting room and go out to see Wynn, the agent would doubtless have told him that the waiting room was there for the full convenience of one situated as he was. He was making the very use of the waiting room that the railroad and the law designed should be made of it. Conly w.as no loiterer on the depot grounds. He was no idler or trespasser; but he was there on the lawful business of an intending passenger. — 467 — We have found no case precisely like the case now on trial, but in the note to the case of Alabama, etc., Ry. Co. v. Godfrey, 130 Am. St. Rep. 76, will he found many authorities discussing this subject and sustaining the principle here'announced. In section 997, vol. 2, Hutchinson on Carriers, it is said: “It would be impossible to frame a clear, precise, legal definition of the word ‘passenger,’ which would embrace all its essential elements.” In 6 Cyc. p. 536, it is said that the relation of carrier and passenger exists, as to railroad companies, “not merely when the passenger enters the train with the ticket already purchased, giving him a contract right to ride, but when he enters upon the premises of the carrier, with intention to take a train in due course.” The case of Andrews v. Yazoo & Mississippi Valley Railroad Company, 86 Miss. 129, 38 South. 773, is no authority for any question involved in this case. In the Andrews case it is shown that Andrews went to the depot more than two hours before the train he desired to take was due. He went into the private office of the agent, and requested the privilege of doing some writing on account of his own affairs, thus going to the depot and making use of its private office as an office in which to transact some business of 'his own. While so engaged in his own business in the private office of the depot, the depot agent and Andrews got into a personal difficulty about a private matter, and the court stated in the opinion that Andrews had gone to the depot in order that he might have a comfortable and convenient place in which to transact his own business, and was not, therefore, a passenger; that Andrews was knowingly violating the rules of the company, and could not claim its protection under the facts of that case. But the very object of Oonly’s visit to the depot was’ in furtherance of his purpose to take passage. Everything he did while there was in accordance with — 468 — the rules of the company, and he was merely availing himself of those facilities which the company had placed there for the use of passengers, and which, under the law and rules of the company, he had a right to use. In view of what we have heretofore said, we deem it unnecessary to further discuss the question argued on behalf of appellee. Reversed and remanded.