Dowd v. Chicago, Milwaukee & St. Paul Railway Co.

PiNNnv, J. There is no conflict in the evidence in relation to the duty, if any, which the defendant owed the plaintiff, or as to the facts relied on to show that the defendant was guilty of negligence causing the injury which she sustained. All the evidence is embraced in the bill of exceptions, and the court having refused to direct a verdict for defendant, and to set aside the verdict on the ground that it was contrary to law and the evidence, the question to be determined is wholly one of law. The transaction in question between the plaintiff’s husband and the railway company is relied on, in virtue of which it is alleged that the company owed the plaintiff a duty; but it could arise only, if at all, by virtue of her privity or legal relation, under the circumstances, With her husband. . The particular business in hand had no relation to or connection with the passenger business or traffic of the company, but concerned only the method of conducting its freight traffic and business, and the rights and duties — 113 — arising out of it in the carriage of live stock. The fact that the plaintiff’s husband was allowed to accompany the train, and ride in the car or on the train to take care of the horses, without charge for it other than the sum paid for the car, was a mere incident of the carriage of the stock, and did not give him all the rights of an intending passenger on a passenger train, though he would not be chargeable, if injured on the trip by the neglect of the company, with contributory negligence because riding in a freight -car and exposed to greater’ peril than if he rode in a passenger car. Lawson v. C., St. P., M. & O. R. Co. 61 Wis. 447. We consider it misleading to treat the rights of the plaintiff and her husband, and the duties the company owed them, or either of them, upon the basis or from the standpoint that the husband was an intending passenger in the ordinary passenger trafile of the company. The real nature of the transaction and attending circumstances must be considered, with a view of ascertaining what, if any, duty the company owed the plaintiff. The company owes certain dutiés, no doubt, in regard to the safety of its platform, to those who come upon it in pursuit of a matter of common interest to both. “ The principle appears to be that imitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using it.” Camp. Neg. § 33; Bennett v. Railroad Co. 102 U. S. 585. A licensee who enters upon or uses premises by permission only, without any enticement, allurement, or inducement being held out to him by the owner or occupant, cannot recover damages for injuries caused by obstructions or insufficiency. He goes there at his own risk, and enjoys the license subject to its concomitant perils, and no duty is imposed by law on the owner or occupant to keep his premises in a suitable condition for those who come there or use them solely for their own con — 114 — venience or pleasure. He must use the premises in the condition in which he finds them. Vanderbeck v. Hendry, 34 N. J. Law, 472; Gallagher v. Humphrey, 6 Law T. (N. S.), 684; Ivay v. Hedges, 9 Q. B. Div. 80; Reardon v. Thompson, 149 Mass. 267. As to a licensee, so long as there is no active misconduct towards him, no liability is incurred by the occupier of the premises by reason of injury sustained by a visitor thereon. Sweeny v. O. C. & N. R. Co. 10 Allen, 368. If the presence of the plaintiff on the platform had any necessary or proper connection with any business or traffic she had or designed to have with the company, or she was an intending passenger on a train about to depart, then an invitation would no doubt be implied on the part of the company for her to come upon and use the platform for such purposes, and a consequent duty devolved on it to use due care to have the platform reasonably safe, both as to access, use, and departure from it. This view is not only a reasonable one, but is sustained by numerous adjudications. Smith, Neg. 59, 60, and cases cited; Heaven v. Pender, 9 Q. B. Div. 302, 305; Indermaur v. Dames, L. R. 2 C. P. 311; Smith v. L. & St. K. Docks Co. L. R. 3 C. P. 326. And we think it equally well settled that, where an intending passenger is about to take a train in the course of regular passenger traffic, the implied invitation extends also to those who go upon the platform to see him off, and as well to those who go there to meet a friend expected to arrive. In Watkins v. G. W. R. Co. 46 L. J. C. P. 817, 821, Denman, L, said: “I regard the passenger’s friend so permitted to go along ... as not being in the nature of a person barely licensed to be there, but as being invited to the same extent as the passenger he accompanies, and who is there on lawful business in which the passenger and the company have both an interest.” And many cases in this country sustain the same view. Tobin v. P., S. & P. R. Co. 59 Me. 183; Hamilton v. T. & P. R. Co. 64 Tex. — 115 — 251; McKone v. M. C. R. Co. 51 Mich. 601; Atchison, T. & S. F. R. Co. v. Johns, 36 Kan. 769; Toledo, W. & W. R. Co. v. Grush, 67 Ill. 263; Central R. & B. Co. v. Smith, 80 Ga. 526. The duty of railroad companies to maintain sufficient and proper platforms for the use and accommodation of passengers, and to properly light them, is fully set forth in Patten v. C. & N. W. R. Co. 32 Wis. 524. No duty will arise on the part of the company in guarding or lighting its platform as to a particular person, unless there has been an implied invitation on its part, at least, for him to enter in respect to some matter of common interest between them, or in which the party is in some proper way connected. There is no universal rule applicable alike to all cases, and the difficulty .of determining whether a mere license or an invitation to enter and use the platform will be implied has been found, in the practical application of these rules of liability, to be very embarrassing. All the cases cited, or which have come under our observation, are those where an invitation has been implied in favor of one or more friends of an intending or arriving passenger, between whom and the company the relation of carrier and passenger existed in the course of regular passenger traffic; and the implication of invitation and consequent duty to those who go to welcome the coming and speed the parting guest seems to be founded on the amenities and social observances which are an inseparable concomitant of modern railway passenger traffic and travel. We think that the rule is limited to the usages in which it had its origin. We do not think any such invitation or implication of duty arises, in a matter relating to freight traffic, as to one having no interest in or duty to perform in relation to the matter in hand, and that it ought not to be so extended without some strong reason for it. Negligence consists in the violation of some duty, having — 116 — regard to the relation, between the parties, to time, place, and circumstances; and whether a duty arises that may be violated or neglected, there being, as here, no dispute as to the facts, is a question of law to be determined by the court. As was said in Cahill v. Layton, 57 Wis. 614: “It is true that fault and negligence in keeping and maintaining the platform is alleged; but in the language of Willes, J., in Gautret v. Egerton, L. R. 2 C. P. 375, ‘to bring the case within the category of actionable negligence some wrongful act must be shown, or a breach of some positive duty. . . . It is ^got enough to show that the defendant has been guilty of negligence, without showing in what respect he was negligent, and how he became bound, to use care to prevent injury to others.’ ” And so in Cole v. McKey, 66 Wis. 510: “ To constitute actionable negligence, the defendant must be guilty of some wrongful act or breach of positive dut/y to the plaintiff.” The duty of the company in such a case is relative, and not absolute; and this is well illustrated in Griswold v. C. & N. W. R. Co. 64 Wis. 657; Gillis v. Penn. R. Co. 59 Pa. St. 143; and Baltimore & O. R. Co. v. Schwindling, 101 Pa. St. 261. A railway company has a right to expect that an arriving passenger or an intending one may be met or accompanied by friends, and so it may be said that, in virtue of the relation between the passenger and the company, there is an implied invitation in their case, and that it owes them a corresponding duty. Not so, however, in the exceptional case, in freight traffic, where ladies,' or others even, attend one who is about to leave in a freight car, riding in charge of live stock,— one who cannot be said to be a passenger except in a very limited and restricted sense. Such cars, in the usual course of business, have no business to transact at platforms, save as the one in charge of stock may enter across it to go to the office, and the company is not expected to provide a platform and have it, or the steps lead — 117 — ing to it, protected by rails or lights at stock chutes, for the use of such so-called passengers or those who may com© to see them off. The court must take notice of the general methods of transacting such business, and or matters of common knowledge. To hold that the company owes such duties in these exceptional cases, where, from motives of mere curiosity or of friendship, or even of affection, persons come to see off one in charge of live stock, would unduly burden and embarrass the freight traffic of the company, and establish a rule which has not heretofore been supposed to obtain. Lights are not maintained in or about such places as upon passenger platforms, and railings around them would be a great hindrance, and on the sides of a few steps or stairs unusual or unnecessary. The facts and circumstances in this case were not such as to give rise to any implied invitation to the plaintiff to come or be on the platform on the evening in question, and wholly fail, in our judgment, to show that the company owed her any duty except that of a mere licensee, to come or go as others might, with the attendant risk. It is material to note the undisputed facts. This station was one where but little business was transacted, and but two shipments of stock had been made by the train in question Within two years. The plaintiff was familiar with the platform, and had been upon it often as a passenger, both going and coming, and knew all about the steps, and had been up and down them a dozen times. The high platform in question was never lighted except when excursion trains were run to the fair, etc. Evidently she and her husband understood this, for they and their party brought lanterns with them. The plaintiff brought her lantern, and there were at least three lanterns at one .time there, and at.no time less than two. Such lights as these are the ones used in and around freight trains and stations, and in loading stock cars. The' company was not bound to allow the — 118 — plaintiff’s husband to load his horses from the high platform, nor to embark or take the train from that point, any more than, in the case of an arriving train, it would be bound to allow him to disembark or get off there. In Hemmingway v. C., M. & St. P. R. Co. 67 Wis. 676, it was said: “ If the company carries passengers upon its freight trains, we are aware of no rule of law which makes it the duty of the company to give such passengers an opportunity to disembark on the depot platform. In many, perhaps in most, cases this would be impracticable; and it is common knowledge that it is not usually done. The company fulfils all its legal requirements if it affords such passengers sufficient opportunity to leave the train at a reasonably safe and convenient place upon the depot grounds of the station, although not at the depot or platform.” The plaintiff’s rights, whatever they were in this case, were no greater than those of her husband, in privity with whom she derived them. The plaintiff’s husband had solicited the privilege of loading the horses into the car at the high platform, undoubtedly so as to have it coupled in from that point. This privilege was granted him, for otherwise the horses would have been loaded in, and the car would have started from, the stockyard, some distance west of the depot. Neither the plaintiff nor her husband was in any just sense invited to the platform, so as to devolve on the company any duty in respect to the plaintiff’s presence there. They were licensees;, certainly so as to the plaintiff. Conceding that her husband was invited, in a legal sense, to the office to sign the contract, the plaintiff had no duty to perform and no interest to care for in that respect. In no fair or legal sense can it be said that the plaintiff was invited there by the defendant. Whatever right she had was as .a mere licensee, and the company did not owe her any duty except in that capacity. When the horses had been put in the car, and the freight contract — 119 — signed, the agent gave over to the plaintiff’s husband and his party, consisting in all of some seven persons, the entire control of the depot, requesting them, when they left, to put out the lights in the waiting room and close the door. While they occupied the waiting room until the train came, not by virtue of any implied invitation arising out of the business in hand, but by the permission or license to load the horses and have the car start from the high platform instead of the stockyards, the party took, in addition to the knowledge of the situation, the risks and dangers incident to it. They had the lights ordinarily used in such business to avoid dangér or injury, and, had a reasonably prudent use been made of the means at hand, there is no reason to suppose that the plaintiff would have suffered any injury. The reason for not doing so is that she did not think of it. It was her duty to think of it, and not the duty of the company. We think that upon the whole case it may be properly said the plaintiff has wholly failed to show the breach by the defendant of any duty it owed to her. For these reasons we think that the verdict should have been set aside, and a new trial granted. By the Oourt.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.