Cleveland v. Pine Bluff, Arkansas River Railway Co.

Hart, J.,

(after stating the facts). The instructions of the court took away from the jury every question of fact except that based upon the doctrine of discovered peril, and this action of the court is assigned as error by counsel for appellant. The undisputed evidence shows that the railroad company did not operate its hand-cars for the carriage of passengers and that the rules of the company forbade their use for that purpose. It is conceded by counsel for appellant that a person, taking a ride on the hand-car with the foreman’s assent merely, could not be regarded as a passenger and that under such circumstances the presumption would be that he was not legally a passenger. Counsel insists however that such presumption may be rebutted by showing such a general and continuous custom of the section foreman in allowing persons to ride upon the hand-car as would be notice to the railroad company. In other words, counsel for appellant concedes that the section foreman had no power whatever as to the transportation of passengers and that the rules of the company forbade him to carry them on the hand-car but he claims that under the particular facts of this case the rule was abrogated by the general custom of the people in the neighborhood riding upon the cars by the permission of the section foreman, and that the railroad company had constructive knowledge of that fact, and that under the facts proved by appellant, the appellee was liable for the injuries sustained by her. We can not agree with him in his contention. Appellee had been in possession and control of the road for a period of five years, and only evidence of what had been done while it had control of the road is competent in this case. The evidence shows that during the time appellee had operated the road its section foremen, as an accommodation, had been accustomed to invite and to allow people living in the neighborhood to ride with them on the hand-ears and had often used such cars to take their families and neighbors up and down the track on business and for pleasure. This was done without the authority of the railroad company and was against its rules. There is no evidence to show that it ever came to the attention of the company’s officers who-had control over such matters, and the physical évidence of such use was not sufficient to impart knowledge thereof to the railroad company. It is true one witness testified that he had on two or three occasions hired the section foreman to carry him up and down the road on business hut it is not shown that any of the officers having charge of the operation of the railroad knew of this fact. The other testimony on the subject only goes to the extent of showing that people living in the neighborhood were accustomed to ride up and down on the railroad with the section foreman for business or pleasure and that this was done principally after work hours. The roadmaster was accustomed to spend one night during the month on this branch line of railroad, hut he says he did not know of this custom and did not hear the hand-car running up and down the road during the time he was there.

Therefore, we do not think that the testimony is sufficient to show that the railroad company had consented to the use of its hand-cars for the carriage of passengers and that its officers in charge of the operation of the road had knowledge of the fact that its hand-cars were used for such purposes. Rathbone v. Oregon Railway Co., 66 Pac. 909; Hutchinson on Carriers, Vol. 2, Sec. 1000; Ib., Vol. 3, Sec. 1205.

The case of St. L., I. M. & S. Ry. Co. v. Caraway, 77 Ark. 405, and other like cases, are relied upon by counsel for appellant to sustain his position. We do not think the doctrine there announced has any application to the facts of the .present case. The court was discussing the liability of the master to his servant. The rule is well settled that if the master directs an appliance to be used for some purpose other than that for which it was originally intended, he puts it in the same position as if he had originally furnished it for that purpose. But the fact that it has been diverted to a new use will not render the master liable if that diversion occurred without his knowledge or consent. A qualification to this rule is admitted in cases where it appears customary for employees to put the appliance to a new use and the master •knows of this custom. See 1 Labatt on Master & Servant, section 28. So the rule has become settled that when the master permits a custom to become established by which an appliance is put to a secondary use he is equally liable as in the case of a primary one. Besides in the case of the Arkansas & Louisiana Railway Company v. Sain, 90 Ark. 278, the court said:

“If the company permits persons to go upon its premises or its cars for the purpose last above indicated, such persons are not trespassers, but'licensees. They are not, however, upon the company’s platform or car ‘to welcome the coming or speed the parting guest,’ in the sense of the law, and are therefore nothing more nor less than bare licensees. To bare licensees railroad companies owe no affirmative duty of care; for such licensees take their license with its concomitant perils. (Citing cases.) A custom upon the part of a railway company, however long’ continued, to permit people to go upon its 'cars merely for the purpose of meeting or seeing incoming passengers, but not for the purpose of rendering them any assistance, does not constitute those who go upon the cars in pursuance of such custom anything more than naked licensees. They are not licensees upon invitation, but simply by passive permission. An invitation upon the part of the company is implied where one goes upon its cars to render some needed assistance to passengers-, for the reason that such service to the passenger is considered to be in the interest of the company as well. Railway Company v. Lawton, 55 Ark. 428.”

Therefore, the only duty that appellee owed appellant under the circumstances of this case was to exercise reasonable care not to injure her after her presence on the track was discovered. We have not deemed it necessary to abstract the evidence on this point. It is sufficient to say that it was conflicting and the question was properly submitted to the jury under the instructions of the court and a verdict was rendered in favor of appellee. Wé find no reversible error in the record, and the judgment will be affirmed.