Stamp v. Eastern Ry. Co. of New Mexico (161 S.W. 450, 1913)

HENDRICKS, J.

The’ appellant, Mrs. Annie Stamp, a feme sole, sued the Eastern Railway Company of New Mexico in the district court of Potter county, Tex., alleging in substance that she was a passenger upon appellee’s line of railway, traveling from a point in New Mexico to a point in Texas, and while at a station of the appellee, and upon a part of the platform of said station intended for passengers, she fell from said platform at a point where it was about five feet in height from the ground, and that the railway company was guilty of negligence in failing to have the depot and platform properly lighted and in failing to have banisters or guard rails around the edge of the platform where she fell. The defendant railway company, among other things, pleaded the contributory negligence of the plaintiff in walking out upon the platform at a place where she was not required to go and in stepping off of the same without taking any precaution whatever for her own safety; defendant further specially answering that the injury to plaintiff occurred in what was then the territory of New Mexico, and that plaintiff at said time was in possession of a free pass, issued by it, with stipulations upon the back of same, agreed to and executed by her, whereby she released the ap-pellee of all damages, whether caused by the defendant’s negligence or otherwise, and agreed to assume all the risk of accident or damage to her person or baggage while in the use of said pass, and that plaintiff was at the time of her injury domiciled and residing in the territory of New Mexico, and that defendant had its domicile and line of railway in said territory, and that the rights and liabilities of the parties should be determined under the rules of law prevailing in the territory of New Mexico or in the United States courts, and that, under said rules prevailing in either jurisdiction, the said contract as to release from liability was valid and binding; the defendant further alleging that plaintiff was a mere licensee upon defendant’s premises and the defendant owed her no other care than not to willfully and wantonly injure her. At the close of the testimony the district court instructed a verdict for the defendant railway company and entered judgment accordingly.

The evidence discloses that Mrs. Stamp, the appellant, was in the possession of the pass, through the solicitations of her son, who was a “pumper” and in the employment of the railway company at the station of Becker, where she was injured, and the following recitation appears on the reverse side of the pass, signed by her: “This pass is not transferable; it must be signed in ink by the holder named, who, by accepting it, agrees to assume all risk of accident and damage to person or baggage under any circumstances, whether caused by negligence of agents or otherwise. [I] accept the foregoing conditions. [Signed] Annie Stamp.”

At the station where the injury occurred, the railroad track in front of the waiting room extended east and west and the depot was parallel thereto. The appellant, her son, and the latter’s wife went to the depot in time to catch a train leaving for the east about 4:30 in the morning and walked into the waiting room at the east end of the depot, which was not lighted at the particular time, with a light only in the office of the agent or operator. Her son left the waiting room for the purpose of looking for the train, and Mrs. Stamp testified: That, after her son walked out, “I walked out on the platform myself. I do not know why I went out there. It was then dark and it was kind of cold and it had been raining the fore part of the night. * * * It was chilly and damp in the depot and one purpose was to walk around a little and exercise. I had no special motive in going out there. The door to the waiting room is right in the southeast corner. I walked out that door and I got turned around on the platform. I turned around the southeast corner. * * * I walked along the platform at the east end of the waiting room. I do not know how far I walked, I probably went to the edge, I did not think I did. * * * I turned then and started back toward the waiting room door. I went, I suppose, too close to the edge of the porch and fell off of it into the hole. There was no light on the platform at the time. I did not know that the platform was built up off of the ground. I did not know there was any jump-off there from the platform to the ground. I do not know whether I just walked right straight off the platform or not. I did not know how near the edge of it I. was. My left foot went off of the platform first. I turned going back with iny side this way (we presume indicating), and that threw my left side to the outer edge of the platform. My left foot went off first. I do not know anything that happened after my foot went off of the platform.” The son who accompanied Mrs. Stamp on this particular occasion testified in her behalf: “This platform extends somewhere about 30 feet from the east end of the depot.”

The best we are able to ascertain from the testimony it seems that the platform at the east end of the depot was covered by a hood-shaped porch — a prolongation of the roof of the main building with arches and supporting pillars either at the edge or' very close to the edge of the platform, where the accident and injury occurred.

We conclude that it was quite dark and for this purpose only, regarding her as a passenger under the law of this state, that the railroad company had not exercised the degree of care obligatory upon it under the circumstances. But we are inclined to think that this woman was guilty of contributory negligence. When she walked out of the door of the waiting room and turned at right angles and proceeded into the dark, along the platform of the appellee, the railway company, to the edge of the platform, precipitating herself off the platform to the ground, that inherently her act is indicative of a degree of carelessness and negligence as to preclude a recovery. We quote from the Supreme Court of Virginia: “The law duly imposes upon a railroad company the duty of keeping its stations and premises in such safe condition as that its passengers, in the exercise of ordinary care, can get upon or leave the same, and to go wherever they are expressly or impliedly invited to go thereon, without injury; and this embraces suitable steps and platforms, as well as suitable light. Keefe v. Railroad Co., 142 Mass. 251, 7 N. E. 874; 2 Wood, Railway Law, § 310, and cases cited. In the present ease, however, the appellant has not exercised such care as entitled her to recover. The ease, as disclosed by the record, is simply this: Upon her alighting at the station, she was shown by the light of the lamp up the steps of the platform and into the reception room where a light was .burning. The hour was late, and no other trains were to'pass the station that night. After being shown into the reception room, she declined the offer of an employs of the company to conduct her to a hotel- near by, preferring, as she said, to spend the residue- of the'-night at the depot; and while the- platform lamp was being trimmed, presumably-, from the evidence, in her presence, she.walked out upon the platform and, without taking the precaution to inquire or ascertain whether or not she could safely do so, turned at right angles upon stepping upon' the platform from the lighted reception room and walked in the dark to the end of it, where she fell off and was injured. This, all the circumstances considered, was not only negligence but recklessness on her part, which clearly defeats a recovery. It was Contended, in the argument, that she went out- to obey a sudden and urgent call of nature, but of this there is .no positive proof in the record; < and, even if it were so,- that could not affect her duty to take ordinary care in walking upon the platform or elsewhere upon the defendant’s premises. It is unnecessary, therefore, to inquire whether or not- it was the duty of the company to have provided a railing at the outer edge of the platform or whether or not it has been negligent in any particular.” Reed v. Axtell, 84 Va. 231, 4 S. E. 587.

We also refer to the case of Gulf, Colorado & Santa & Railroad Co. v. Hodges, 24 S. W. 563, decided by the Court of Civil Appeals of the Second District. That court said: “It seems that the place where appellee fell from the platform was, at the time, enveloped in almost total darkness; that he [meaning the passenger] got off the train on the east side of the depot and immediately started in a northwest direction along the depot platform and walked off of it at a place where it was between four and five feet high.” -We also quote a part of the testimony quoted by the court in that case as follows: “I got on the platform so easy that I though I could leave it as easy. When I got to the top of the platform where I fell, I did not change my :gait, but my right foot went out, and I did not touch the platform, and in consequence thereof I fell. I do not remember looking for the top of the platform. It was too dark to look for anything. * * * I was walking along regardless of everything, until I received the injuries. * * * I- thought I was on level ground. * * * I was not thinking anything about steps but was walking as though I was going to some place; and the first thing I knew I fell off.” The court concludes as a matter of law that: “It seems to us for a man 76 years old to proceed along a railroad platform in the dark, in the manner described, necessarily conveys the idea of negligence” — citing the Virginia case, supra, quoted from by us.

It is true that in the Hodges Case the passenger was attempting to leave the depot and the platform but, oblivious of his surroundings and the darkness enveloping him, regardless of his own welfare, without any precautionary measure on his part as to the situation in which he was placed, was injured, and the intrinsic culpability of the act was such as to ally itself to this case and the act of culpability manifested here.

Because a railroad company may owe •a higher decree of care than its passenger, upon whose premises the latter may be situated, does not, we think, tend to soften or destroy culpability upon the part of the passenger, if actually manifested. Contributory negligence, as a standard, should be the same, except, of course, that it may vary on account of the relationship existent.between the parties. A servant may rely under certain. conditions upon the master having done his duty, and the passenger may rely, as indicated in the Virginia case, upon the performance of the duty of the carrier. But this is not to- be confounded with an act itself, as indicated in this record, where, although the duty may not have been performed, the passenger proceeds into the dark, with the degree of carelessness indicated here, and practically walks off the edge of the platform without knowledge of surroundings; surely such manifestations under such conditions do not constitute ordinary care.

On the question of the free pass and the law of New Mexico becoming a part of the contract, one • be gratuity. The case of Western Union Telegraph Co. v. Etta White, 162 S. W. 905, decided by us December 6, 1913, is clearly) distinguishable from this case, patent upon) reading the two cases, and does not apply. ( The question of diverse citizenship is not l in this record. If this transportation was ] not based upon a consideration, the law of j the Supreme Court of the United States is r the law of this very case, and, if sued upon ’ in New Mexico, we believe the result there would have been the result here. A further inspection and consideration of tile congressional act with, reference to free passes causes ns to reiterate that the same is not applicable to the record here.

The motion for rehearing is overruled.