
    The Cincinnati, Hamilton & Dayton Railroad Co. v. Aller.
    
      Railroad station platform — Liability and duty of railway company incident tp guarding and lighting platform.
    
    A railway- company having constructed its station and a platform incident thereto does not, by permitting persons to use such platform for purposes of their own not connected with the transaction of business at such station, become charged with a duty to reconstruct guard or light such platform' so as to render it safe for the permitted use. (P., P. W. & C. R. Co. et al. v. Bingham, 29 Ohio St., 364, approved, and followed; Harriman v. Ry. Co., 45 Ohio St., 11, distinguished.)
    (Decided March 12, 1901.)
    Error to the Circuit Court of Lucas county. (On rehearing.) .
    Aller brought suit in the common pleas against the plaintiff in error and the New York, Chicago & St. Louis Railroad Company to recover for personal injuries by him sustained in stepping from the platform, which was maintained by the plaintiff in error at a suburb in the village of Leipsic, at a'station jointly constructed and used by said company and the New York, Chicago & St. Louis Railroad Company (called the Nickel Plate) at the crossing of their roads. He1 charged that the plaintiff in error was negligent because it kept no lights about its station and because it did not raise the earth or provide steps at the end of the platform where he received his injury, or place upon the platform at that point a balustrade to keep footmen from stepping off. The answer denied the allegations of negligence against the company and averred that whatever injury Aller sustained was the result of his own negligence. The plaintiff replied denying the allegation of negligence against him.
    Upon the trial much evidence was introduced, the larger portion of it relating to the extent and nature of Aller’s injuries. We are concerned only with that portion! of the evidence which relates to his right to recover. In that portion of the evidence there is no material conflict. At a point on the line of the company’s road about half a mile north of the village of Leipsic the other railroad crosses it approximately at right angles. At the southwest angle of the intersection the companies maintain a joint building consisting of ticket and telegraph offices and waiting room. Upon the north side of the building, and occupying the space between it and its track, the Nickel Plate maintains a platform for use in connection with its trains, and on the east side of the building the C. H. & D. Company maintains a like platform for its similar use, the platform being twelve feet in width and extending southwardly from the junction a distance of 289 feet. On the morning of his injury, at about five o’clock, while it was yet dark, Aller reached the junction by a train of the Nickel Plate road, intending to take a train of the C. H. & D. Company for Ottawa. The train for Ottawa was, according to its schedule time, to arrive at the junction something more than three hours later and it was scheduled to stop at the junction to discharge and receive passengers. Whether by one light or more the room at the junction station was lighted, and employes of the company were there attending to their appropriate duties. Provisions were made for the sale at the junction office of tickets for the train to Ottawa. Whether acting upon information which he had received a year before that the train for Ottawa did not at that time stop at the junction, or for some other purpose not connected with his trip, Aller after alighting from the train which had brought him to the junction carrying out a previously formed intention passed eastwardly to the corner of the building, thence southwardly on the platform of the plaintiff in error past the ticket office and waiting room, intending to go to the village and take the train for Ottawa at another station which this company maintained there. Footmen had been accustomed to go from the junction to the village by passing southwardly along the platform of the defendant to a point near its south end, thence from the east side of the platform to the track which they then followed to the village. This was done by so many persons and for so long a time that the company’s employes in charge of its premises would be presumed to have knowledge of the custom. Aller had himself pursued this course a year before. On this occasion, however, he did not pass from the side of the platform to the track, but continued, southwardly along the west side of the platform to its end which was in the common and not connected with any lighted or used street. Knowing that he had reached the end of the platform, being unable to see what was before him, and assuming that from the platform to the ground was an ordinary step, he stepped off at a venture at a point where it was approximately five feet from the surface of the platform to the ground below, and thus received the injuries for which he brought the action. The platform was constructed in 1886 or 1887 and maintained without change from that time until Aller received his injuries in November, 1893.
    Upon this evidence and with respect to the right to recover the court charged the jury as follows:
    “As against the C., H. & D. Railroad Company the jury will consider all the evidence and determine whether the C., H. &.D. Company allowed and invited passengers who arrived at the junction station to pass along its platform to the southerly end thereof, and thence along its tracks leading to the Leipsic town station. If it did invite such use and with knowledge thereof acquiesced in the use for a long period of time, it will be held to the exercise of care accordingly,; having due regard to such use and proportioned tc the probable danger to passengers arriving at the junction who might go that way.
    “If the jury find that the defendant, the C., H. & D. Company, did so invite the use of its platform and adjoining tracks, it was bound to exercise reasonable and ordinary care in having them safe, for such use, and if the jury find that it failed and neglected to exercise such reasonable and ordinary care, so that the plaintiff in going that way fell from thé platform of the C., H. & D. Company, without negligence on his part, at a place where the said company had failed in the exercise of ordinary care to have a safe and proper approach to the platform, then your verdict will be for the plaintiff.”
    With respect to the contributory negligence of the defendant the court charged as follows:
    
      “Dr. Aller was obliged to use ordinary care and prudence in taking his way from the platform where he alighted from the Nickel Plate train. If, considering all the circumstances of the situation, there would not have appeared to a reasonably prudent person any danger in going along the place and in the manner that he did, then he cannot be said to have been guilty of contributory negligence, though in fact injury followed what he did. In determining the question of whether the plaintiff himself was negligent or not, the jury will take intq consideration the time of night, and what, if any, light there was to guide his footsteps, together with the information and knowledge he had as to where he should go to take the C., H. & D. train.”
    The following instructions requested by the company were refused by the court:
    “If you find from the evidence that the train of the defendant, The Cincinnati, Hamilton & Dayton Railroad Company, which the plaintiff intended to take, was not due to arrive at said junction station until' 8:26 A. M., or thereabouts, and if you further find from the evidence that the plaintiff arrived at said station on a train of the New York, Chicago & St. Louis Railroad Company at 5 A. M., or thereabouts, and if you further find from the evidence that the plaintiff did not intend to take a train of the Cincinnati, Hamilton & Dayton Railroad Company at said junction station, but did intend to take a train of said defendant at its station about one-half mile distant, then the defendant did not owe the plaintiff the duty of lighting its platform or of guarding the end of the said platform.
    “It was the duty pf the plaintiff, while walking along said platform, to exercise such care as an ordinary prudent person would exercise under like circumstances, and the fact it was dark, and that he was unacquainted with the character or condition of said platform, made it incumbent upon him, before stepping off the end of said platform, to ascertain, so far as he reasonably could, whether it would be safe so to do; and if you find.from the evidence that the plaintiff stepped off the end of said platform without making any attempt before so doing to ascertain whether it would be safe so to do, then your verdict must be for the defendants.”
    A verdict was returned in favor of Aller and against the plaintiff in error. Its motion for a new trial was overruled and a judgment was rendered on the verdict. A bill of exceptions was taken setting out all the evidence and presented to the circuit court with a petition in error. The judgment of the common pleas was there affirmed.
    
      Swayne, Hayes c& Tyler, for plaintiff in error,
    cited the following authorities:
    
      Gillis v. Railroad Co., 59 Pa. St., 129; Harriman v. Railway Co., 45 Ohio St., 11; Railway Co. v. Hummell, 44 Pa. St., 375; Railway Co. v. Norton, 12 Harris, 465; Mason v. Railway Co., 6 Am. & Eng. R. R. Cas., 5; Railway Co. v. Maryland, 19 Am. & Eng. R. R. Cas., 88; Railroad Co. v. Bingham, 29 Ohio St., 369; Railroad Co. v. Brown, 18 S. W. Rep., 670; Railroad Co. v. Godfrey, 71 Ill., 500; Railroad Co. v. Brinsom, 10 Ga., 207; Railway Co. v. Tartt, 64 Fed. Rep., 826; Railroad Co. v. Huffman, 28 Ind., 287; Railroad Co. v. Graham, 95 Ind., 286; Ivens v. Railway Co., 103 Ind., 27; Railway Co. v. Schmidt, 106 Ind., 73; Railway Co. v. Bryan, 107 Ind., 51; Beach Contrib. Neg., 67-68; Palmer v. Railway Co., 112 Ind., 250; Carlton 
      v. Steel Co., 99 Mass., 216; Railroad Co. v. Griffin, 100 Ind., 221; Green v. Linton, 27 N. Y. Sup., 891; Cusick v. Adams, 115 N. Y., 55; Gillespie v. McGowan, 100 Pa. St., 144; Sweeney v. Railroad Co., 10 Allen, 368; 2 Wood on Railroads, Minor’s Ed., p. 1462; Railroad v. Schwindling, 8 Am. & Eng. R. R. Cas., 544; Woodwine, Admr., v. Railroad Co., 50 Am. & Eng. R. R. Cas., 37; Pierce on Railroads, 275; Railway Co. v. Treadwell, — N. E. Rep., 807; Eggeman v. Railroad Co., 47 Ill. App., 507; Blanchard v. Railway Co., 126 Ill., 416; Railroad Co. v. Hetherington, 83 Ill., 510; Railroad Co. v. Houston, 95 U. S., 697; Roden v. Railroad Co., 133 Ill. App., 72; Dillon v. Railway Co., 154 Mass., 478; Railway Co. v. Moseley, 57 Fed. Rep., 921; Kirtley v. Railway Co., 65 Fed. Rep., 386; Railroad Co. v. Noble, 142 Ill., 578; Abend v. Railroad Co., 111 Ill., 902; Barstow, Admr., v. Railroad Co., 143 Mass., 535; Greenleaf on Ev., 15th ed., Sec. 114; Hutchinson on Carriers, 2nd ed., Sec. 562; Heinlein v. Railroad Co., 16 N. E., 698; Akers v. Railway Co., 60 N. W. Rep., 669; DeBlois v. Railroad Co., 73 N. W. Rep., 637; Elevator Co. v. Lippert, 63 Fed. Rep., 942; Troy v. Railroad Co., 99 N. C., 296; Bennett v. Railroad Co., 102 U. S., 577; Coal Co. v. Estievenard, 53 Ohio St., 43; Railway Co. v. Lowell, 151 U. S., 209; Keefe v. Railroad Co., 142 Mass., 251; Railroad Co. v. Lucas, 21 N. E., 968; Railway Co. v. Hurley, 84 Fed. Rep., 269; Forsyth v. Railroad Co., 103 Mass., 510; Reed v. Railroad Co., 4 S. E. Rep., 587; Railway Co. v. Hodges, 24 S. W., 563; Felton v. Aubrey, 74 Fed. Rep., 350; Heaven v. Pender, 11 Q. B. D., 503.
    
      Hurd, Brumback & Thatcher, for defendant in error,
    cited the following authorities:
    
      Harriman v. Railway Co., 45 Ohio St., 11; Heaven v. Pender, 11 Q. B. D., 503; Corby v. Hill, 4 C. B. (N. S.) 556; Sweeny v. Railroad Co., 92 Mass., 372; Kay v. Railroad Co., 65 Pa. St., 269; Railway Co. v. Sue, 25 Neb., 772; Railroad Co. v. Watson, 94 Ala., 634; Garner v. Trumbull, 94 Fed. Rep., 321; Thompson v. Railway Co., 93 Fed. Rep., 384; Troy v. Railroad Co., 99 N. C., 298; Railroad Co. v. White, 84 Vt., 498; Davis v. Railroad Co., 58 Wis., 646; Delaney v. Railroad Co., 33 Wis., 67; Griffiths v. Railroad Co., 14 L. T., 797; Cooley on Torts, 605; Railroad Co. v. Griffin, 100 Ind., 221; Cusick v. Adams, 115 N. Y., 55; Barry v. Railroad Co., 92 N. Y., 289; Byrne v. Railroad Co., 104 N. Y., 362; Railroad Co. v. Bingham, 29 Ohio St., 364; Pennsylvania Railroad v. Snyder, 55 Ohio St., 342; Transfer Co. v. Field, 97 Fed. Rep., 881; Beard v. Railroad Co., 48 Vt., 101; Railroad Co. v. Trautwein, 52 N. J. L., 169; Railroad Co. v. Long, 81 Tex., 253; McDonald v. Railroad Co., 26 Iowa, 124; Bueneman v. Railroad Co., 32 Minn., 390; Patten v. Railway Co., 32 Wis., 524; Railroad Co. v. Hammer, 72 Ill., 347; Hydraulic Works v. Orr, 83 Pa. St., 332; Schilling v. Abernethey, 112 Pa. St., 437; Railway Co. v. Crosnoe, 72 Tex., 79; Kinchlow v. Elevator Co., 57 Kans., 374; Purnell v. Railroad Co., 122 N. C., 832; McKone v. Railroad Co., 51 Mich., 601; Bennett v. Railroad Co., 102 U. S., 577; Railway Co. v. Lowell, 151 U. S., 209; Keefe v. Railroad Co., 142 Mass., 251; Lucas v. Penn. Co., 120 Ind., 205; White v. Railway Co., 89 Ky., 478; Watson v. Land Co., 92 Ala., 320; Patterson Ry. Acc. Law, 222; 2 Wood on Railways, sec. 1389; 2 Shear. & Red. on Neg., 410; Wharton on Neg., sec. 376; Clark v. Howard, 88 Fed. Rep., 199; Davenport v. Ruckman, 37 N. E., 568; Ohliger v. Toledo, 10 Circ. Dec., 762; 20 C. C. R., 142; Chicago v. Babcock, 143 Ill., 358; 2 Thompson on Neg., 1197; Beach on Contrib. Neg., sec. 246; Low v. Railway Co., 72 Me., 313; Bronson v. Oakes, 22 C. C. A., 520; Railway v. Wright, 54 Ohio St., 181; Railway Co. v. Murphy, 50 Ohio St., 135; Railway Co. v. Howard, 40 Ohio St., 6; Brisbane v. Martin, 19 App. Cas., 252; Railroad Co. v. Buck, 96 Ind., 346; Lapleine v. Railroad Co., 40 La. An., 661; Stewart v. Ripon, 38 Wis., 584; Railway Co. v. Kemp, 21 Md., 74; Ehrgott v. Mayor, 96 N. Y., 265; Scott v. Shepard, 3 Mil., 403.
   Shauok, J.

The station house with its appropriate rooms and the platforms were obviously adapted to the use of the two roads in the interchange of traffic. They were so used. Passengers desiring to transfer from one road to the other were, therefore, invited to use them for that purpose. And this invitation implied an undertaking that the platforms were reasonably safe for that purpose. It follows that if the plaintiff had received his injuries while making his way with reasonable care to the ticket office or waiting room his right to recover would be entirely clear.

But he entered upon the platform with an intention previously formed not to use it for that purpose. Pursuing that intention he set out to use the platform and the track of the company as a way to reach the village a half mile distant, and having knowingly passed the ticket office and waiting rooms where employes would have provided him with a ticket and with information of the movement of trains, if he was not already informed, he had reached a point somewhat more than two hundred feet from the office when he received his injuries. The duties which the company owed him were such only as arose out of the relation to it which he had thus voluntarily assumed. ,It is said that the frequency with which the platform and track were used by footmen as a way to pass from the vicinity of the junction to the village, and the long continuance of that use, raise a presumption that those who represented the company in charge of its ground had knowledge of the use, and that from acquiescence with knowledge, permission may be inferred. If this is conceded it will serve no further purpose than to place the plaintiff in the position of one so using the platform and grounds of the company by permission. But there is no ground for the contention that the company had invited the plaintiff and others to use the platform and track for the purpose which he had in view. It is quite true that the invitation to go upon the platform of a railway company is usually implied from the community of interest, that is, the interest of the traveler in being transported and of the carrier in transporting him. Here, however, was no community of interest. It is conceivable that the condition of the ways and commons gave to footmen an interest in so using the platform and track, but that the company was interested in having them so used is inconceivable. It is the subject of frequent observation that footmen use the bridges of railways for their convenience in the crossing of streams, but has it ever been heard that in consequence of such use railway companies become bound to cover the openings between the ties so as to make their bridges safe for the passage of footmen? No such obligation arises, for it is the settled rule upon the subject that one who enters upon the premises of another by mere sufferance and permission assumes the risks which arise from concomitant conditions. This proposition is established by the case of P., F. W. & C. R. R. Co. et al. v. Bingham, Admx., 29 Ohio St., 364, where Boynton, J., has carefully analyzed numerous cases relating to the subject. Further discussion of it cannot be necessary.

But it is urged that in the circuit court it was thought, and rightly, that the judgment under review was required by the later case of Harriman v. Railway Co., 45 Ohio St., 11. Attention to the facts presented in the cases will show that in the legal view they are materially different. In the present case there has been a recovery because the end of the platform as it had been constructed six years before the accident and maintained without change, was not constructed or guarded so as to make it a safe way for footmen passing from the junction to the village, although such use was not within any invitation which the company extended to the public. While in Harriman v. Railway Co., the recovery was by one who was upon the grounds of the company by permission only, the injury was not occasioned by any real or alleged defect in the construction of the road. The injury there resulted from the operation of the road. The doctrine’ of the ease is that when the company became aware that persons were using the road for purposes of their own it became its duty, not to alter the construction of its road, but to operate it consistently with the facts thus known to it. It was held to be a violation of that duty to add new and further peril to such permitted use without taking precaution against injuries which would naturally result therefrom. Not only does such added peril from the operation of the road appear as a fact in the case, but in the syllabus it is stated as a ground of recovery; and in the opinion the question for decision is stated as follows: “An owner may, without protest or objection, permit his premises to be used by the public so long, in the same condition, that his acquiescence in the continuation of such use, until some warning or notice on his' part, might reasonably be expected; and if under such circumstances and with knowledge of the same, he should place or leave some new, dangerous structure or instrument in the way so used, and from which he might reasonably apprehend danger of injury to those accustomed to such use, can he claim exoneration from liability in case such injury shall occur, on the ground that the law imposed no duty on him to keep his premises in a safe and suitable condition for trespassers and licensees who enter by permission only?” The case therefore recognizes the doctrine of the former case, which we follow here with approval. It follows that there was no evidence tending to show a default of the company in any duty which it owed to Aller, that the instruction given with respect to its duty was not applicable to the case, and the requested instruction upon that subject should have been given. If we had reached a different conclusion upon this question, very serious consideration would be due to the evidence in support of the company’s allegation that the injury to the plaintiff below was due to his own negligence, and to the instructions given and requested with respect to the subject of contributory negligence. But that subject need not be considered in view of our conclusion upon the first question. For the reasons stated we adhere to the judgment heretofore entered and announced reversing the judgments of the circuit and common pleas courts.

Burkbt, Spear and Davis, JJ., concur.  