AMC MISS° UHF 1. 1 ACTFIC.R . D. CO. v. EN GLISH. 557 MISSOURI . RACIFIC RAILROAD C6M PAN Y V. ENGLISH • 4-3033 Opinion -delivered June 12,- 1933. •1. NEGLIGENCE— UNSAFE PREMISES—INVITATI6N.—The owner or Cc-. cupant of land who by. invitation, express or implied, induces another to Come upon the premises for a . lawful purpose is liable to .a persorr injured,: while using due care, .on account of the unsafe condition of the land, known to such owner but not to the other, and negligently permitted to exist without timely notice to the'public or to those likely to act upon the invitation. 2. NEGLIGENCE INVITATION TO USE PnEivrIsEs:-. --While an invitation to use premises will not ordinarily be implied from the fact that the owner acquiesced in or tolerated trespasses thereon, if he -per,: !pitted persons generally to use a way under such circumstances -as to induce a belief that it . is public in character, he owes to persons aVailinethem . selves thereof the duty dne tO those who corne upon the premises by invitation. 3. RAILROADS—DUTY TO MAINTAIN FOOT BRIDGE.—Where a railroad • company for many years maintained a foot hridge across a ravine along its track for convenience of-pedestrians, it was required-to use ordinary care in maintaining the bridge. 4. DAMAGES—INJURIES TO MINOR.—An award of $200 to the father 'of an injured Minor was not excessive where he expended $100 .tor doctor's bills and Medicine. 5. DA MAGES—PERSONAL INJURIES.—An award .of $300 to a 16-Year-. old girl, who received serious -and .probably permanent injuries in falling through a defective bridge, held notexcessive. Appeal from • CrawfOrd Cireuit . COurt ; 'J. 0. Kincari-non; • Judge; affirmed.- 's-rATEmEN't 111 .Y THE COURT. ; These -, consolidated ' cases 'were ink,ituted . by appel-lees hg -aihst appellant -in 'the' Crawford Circuit CoUrt -to compensate an injury received by Lydia.English, a minOr, under -the following circUmStances. Lydia English is 16 years of age and is the daughter of_I J • ee English ; she rosided with her .father in Oklahoma near Greenwood Junction on . appellant's lines of railroad ; on the date of the -injury Lydia. English had.gone to :the- home of one Carter who resided in a - small house on appellant's right-of-way . in tho IT illage.of Greenwood Junction. Appellant has and -maintains a .depot in this village, and the Carter home is . some. 400- feet=west of
558 MISSOURI-PACIFIC RD7 CO. 'VI ENGLISH. [1_87 the depot. Between the Carter home and the depot a ravine passes under the railroad tracks, and a foot bridge is maintained by appellant adjacent to the railroad bridge and tracks for the accommodation of pedestrians. This bridge was built some 30 or 40 years ago and has been maintained up to the present time for use. Lydia En-glish, after performing the errand at the Carter home, undertook to walk over this foot bridge going in the direction of the depoi, and she stepped upon a rotten and decayed plank in the bridge which broke through, and she received the injuries from which she complains. These suits were prosecuted by appellees upon the theory that Lydia English was an invitee upon the bridge, and that it was the duty of appellant to keep and maintain this bridge in a reasonably safe condition for pedestrians. Appellant defended the suits upon the theory that Lydia English was a trespasser, or at most a licensee, and that it owed her no duty other than not to wantonly or wilfully injure her. . Practically the uncontradicted testimony in the case shows that this bridge upon which Lydia English .was injured has been in constant use by the public at large for 30 or 40 years and this to the knowledge of all the officials of the railroad company in charge of the company's business in that locality. No warning or signs were posted warning against the use of this bridge by the public. At the close of the testimony in the .case, appellant requested the court to direct the jury to return a verdict in its behalf ; the court refused this request, and submitted the issues to the jury, which found for appellees. Thos. B. Pryor and W. L. Curtis, for appellant. Partain &-Agee, for appellee. JOHNSON, C. J., (after stating the facts). The principal cause of complaint is that the court erred in refusing to direct a verdict in behalf of appellant. This is based upon the theory that Lydia English was a trespasser or at most a licensee, and the case of Barnett v. St. L. <6 S. F. Ry. Co., 140 Okla. 19, 282 P. 120,•is relied upon to sustain this theory.
ARK.] MISSOURI PACIFIO RD. CO . V. ENGLISH. 559 The facts in the Barnett case were that plaintiff was walking along a pathway near the track of the defendant which had been used .by the public for a long number of years -with the knowledge and acquiescence of the railroad company, and that while he was on thi§ pathway the defendant wrongfully backed one of its trains against • he plaintiff and thereby injured him. On the trial of the ease, plaintiff abandoned this theory and introduced testimony only to the effect that he was .a deputy United-States marshal and rightfully upon the premises. This testimony, was objected to at the time of its introduction, and the trial court sustained a demurrer to this evidence, which was affirmed by the Supreme Court of Oklahoma. It will thus be seen that the Barnett case, cited supra, is no authority for the position here assumed by appellant under the laws of Oklahoma. It is next insisted on behalf of appellant that this case is ruled by Texas 0. & E. R. Co. v. MoCarroll, 80 Okla. 282, 195 Pac. 139. The facts in this case were that appellant was riding on the pilot step of an engine by invitation of the watchman. The undisputed testimony Showed that the watchman had no authority to invite appellant to ride upon the pilot step. The Supreme 'Court of Oklahoma held that appellant was neither a licensee or invitee but a trespasser, and therefore plaintiff could not reeve': Certainly it cannot be seriously contended that this case is authority for the position here assumed by appellant. It is next insisted that this case is ruled by A. • T. & S. T. Ry. Co. v. Cogswell, 23 Okla. 184, : 99 Pac: 923, 20 L. R. A. (N. S.) 831: The facts in thiS ease were:that plaintiff went to the depot of the defendant to meet a passenger and while upon the platform he stepped through a hole in the fAatform and was injtred. Plain-. tiff had no business with the company, hut went there merely to meet a passenger on private busine§s. In this case the company contended that plaintiff was . a pere licensee, but the -Supreme Court of Oklahoma held -Olaf under these facts the jury was warranted in finding tiidt there was an implied invitation on the part of the rail-
560 MISSOURI PACIFIC RD. CO . V. ENGLISH. [187 road company and , that the jury was warranted in finding,in favor of the. plaintiff. . • • No Oklahoma case has been cited on this appeal which should control, as a matter of. law-, -the finding of- the jury in this case. • • The . dOctrine applicable to the .faas of this • case - is Stated concisely in the case of Bewnett v. L. .& N. Ry. Cro:, 102 V. -S.-577, 26 Law Ed. 235, wherein the court held : "That the . owner or occupant of land wbo by invitation, expressed or• implied,. induces or leads": others to come upon his premises, for any lawful - purpose, is "liable Sin. damages to such persons, 'they using due Care, for injUiY occasioned by the unsafe condition Of Ahe . land or itS approaches, if such conditiOn Was known- to bim and not to them, and was negligently , suffered to exist witlionf timely notice to the public or to those -who were likely to act upon . such invitation." " Again, in 20. R. C. L., par. 57, page 64, the rule is, stated as follOws : "While an. invitation to go upon premises will not be implied, ordinarily, from the fact that- the owner or occupant has acquiesced in or tolerated trespasses thereon, many decisions have recognized an exception in case of a way across lands or struCtures thereon. If the owner or occupant has permitted per sons generally to use_ or establish a way under such -cir4- cumstances as to induce a .belief that it is public in character, , he owes to persons availing themselves 'thereof the duty due to those who come upon premiSes by in.- vitation." • : . In the recent case . of Louisville & N. Ry.. Co. v. Snow, 23"5 -Ky. 211,, 30 S. lAT . '(2d) . 85, the Kentucky Court held : "The decedent was not -an invitee in the technical sense that . one going upon the •premises :"of another to_ their mutual advantage is an invitee, but the facts of this case bring it within the class- of cases in which the doctrine has been recognized and applied that, when the owner, by his conduct, has induced a party to . use a private way in the - belief thata is open- for the use of the public, the duty is 'imposed-upon . him. of maintaining the way in a. reasonably safe condition. •Where one by his conduct has in-
ARK.] - MISSOURI PACIFIC , Rll. CO: V. ENGLISH. 561 &iced the public to use -a way in the belief - that it : is..a street or public way, which all have .a right -to use, And where they suppose .they will...be safe„ the . liability should be . co-extensive . with the inducement, or implied. invi, tation.'.! The- doctrine, as anrmunced iii th`e cA se . cited 4. upra, ha's been applied by this . Court :in the case of St. L. I. 111: & S. liy.60. v. D r ooley,77 . Ark. 561, 92 S. W. 789,-Wherein the court held : "The f5are -permission of the *owner .Of private grounds to :persons to: enter uPon _his :PremigeS does not render:him liable for injurie g received by them .on account of the'condition of * the premises. 'But, : if he. expressly 'or impliedly* invites,. induces,. or leads them to come upon his premises, he is liable in damages to them (they using due , care) for :injuries oecasioned by the unsafe' condition of the premises, if such condition was the result of his -failure to use ordinary care to prevent. it, and he failed to give timely notice thereof to them or the public. - This principle:is . aPplicable to the case before us. If the appellant constructed the steps and expressly or- impliedlY invited, induced or let persons to cross the : same, it 'is -liable in damages to them for ;injuries occasioned by the unsafe condition thereof, if it. was the result . of the failure to use ordinary .care to keep:the same in safe condition. Wit was unwilling to ineur this- liability,. it could* have avoided it -by- rem.ov-ing the 'steps or giving timelY notice of the condition to such persons or the pUblic." . The rule as announcedin the Dooley case cited, , supra, is stipported by the great weight of -American...authority. No Oklahoma case has been cited annOuncini any different rule. The jury the in g tant ca g e was fully warranted in finding that the' maintenance 6f the foot bridge by the appellant for a long number : of years . and its Oh-*stunt and perpetual uge bY• thé;Public, as a' -Way, *With full knowledge and tacit aognieseence Of 'appellant, *as an implied invitation . _ fOr its Confirmed use, • and that ap--- -Pellant NNig s rermired to use orainiy eare in keeping and maintaining-same for snch purpOse.- "'Therefore, we- conclude* that the case was . properlf Submitted te 'the jtify
for itS conside ration, and its findings that Lydia English was an invitee is supported by the evidence:. The juiy i . eturned a verdict in favor of Lee-English, the' Tather of Lydia.- English, for $200; it also returned a verdict in favor of appellee, Lydia English, for $3,000. It is insisted. on this appeal that these awards are excessive: • We ' cannot agree. The testimony shows that Lee ,English. expended for doctor's bill, medicMe, .etc., almost , $100 ; therefore, unquestionably, : a verdict for $200 in- his :behalf , would .not be txcessive. The . testiradny in. behalf . . of: appellee i. :Lydia English, was to the effect that her . 'injury was serious and, probably permanent. We. 'cannot say,, as a,Mattef of law, that $3,000 was an excessive awatd.. •,, • •Let the judgments be affirmed. • , ri
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