222 Ky. 190
Court of Appeals of Kentucky.
Dec. 6, 1927.
ACTION: Affirmed.

Appeal from Circuit Court, Knox County.
Action by Rebecca Manatis against the Cumberland & Manchester Railroad Company.
Judgment for defendant, and plaintiff appeals.

Rebecca Manatis filed an action in the Knox circuit court against the Cumberland & Manchester Railroad Company for damages growing out of a breach of duty alleged to be due her as a prospective passenger while in its depot. The court sustained a demurrer to the petition as twice amended, and plaintiff has appealed. In substance, the petition as amended alleges that the defendant maintains a passenger station and depot at Heidrick, at the junction of its railroad with that of the L. & N. R. R. Co; that plaintiff desired to become a passenger on L. & N. train No. 21, which was due to arrive at Heidrick at about 5 a. m.; that on the night of October 3d and morning of October 4th she informed defendant's agents in charge of the depot at Heidrick of her wish to take passage on train No. 21 and inquired of them if the depot and waiting room for ladies attached thereto would be kept open for the arrival of that train, and that those agents represented and stated to her that its said depot was then open and would be kept open for her and other persons until the arrival of said train No. 21. It is further alleged that Heidrick was then a regular station and stopping point for all trains on both railroads; that it was a rule and custom of defendant to keep its depot open for passengers of the L. & N. R. R. Co., including train No. 21, as well as passengers desiring to take passage on its own trains; that this custom had been followed for a long time, and was in practice at the time stated, and was well understood by the agents and servants of defendant with whom she dealt; and that they informed her that such was the case, and, upon being thus informed by those in charge of the depot and waiting room she remained in the ladies' waiting room until the arrival of train No. 21, and the defendant company by its agents and those in charge of its depot then and there accepted her as a passenger to take passage on train No. 21. She further alleges that after being so assigned to the waiting room and while waiting for the arrival of train No. 21 at the depot and in that room, the agents and servants of the defendant company in charge of the depot and others made indecent proposals to her, and offered to have sexual intercourse with her, and forcibly assaulted her for that purpose, and attempted to rape her to her great pain, humiliation, etc.

Plaintiff insists that under the facts stated she acquired the status of a passenger to whom the defendant owed the highest degree of care; that it failed to exercise such care and thereby breached its duty to her; and that this constitutes a cause of action. Considering this question, a person who bona fide intends to take passage upon a carrier's train and enters its depot with that intention. within a reasonable time before the train's departure upon which he intends to take passage (30 minutes by our statute), with the means at hand to pay his fare, and either purchases a ticket or announces his intention so to do to the carrier's agent, thereby acquires the status of a passenger and is entitled to protection as such.

No doubt, where such person announces his intention of departing on a train not due within 30 minutes, if the agent agrees to keep the waiting room open for him until the arrival of such train, the same principle would apply. But unless such person purchases a ticket or announces his purpose so to do as above indicated within 30 minutes before the train's departure, or does this and obtains such leave if the train is not due within that time, the carrier is not charged with notice of his intention and is under no obligation, contractual or otherwise, to treat him as a passenger. I. C. R. R. Co. v. Laloge, supra.

The petition in this case does not meet all these requirements. Its weakness consists of the fact that it is not alleged that plaintiff intended to take passage on any of defendant's trains or made any inquiries or arrangements to that effect, but specifically stated her purpose was to take an L. & N. train. It is not alleged that there was any arrangement, contractual or otherwise, between the L. & N. railroad and the defendant, whereby the defendant sells tickets for the L. & N., or obligates itself in any manner to care for the passengers of that railroad, or assumes any responsibility for them or undertakes any duty toward them, and it cannot be said that the plaintiff in any sense occupied the status of a passenger of the defendant carrier. Hence its duty toward her was only that it owed the general public visiting its waiting rooms, who are regarded as mere licensees to whom the carrier owes no duty except to abstain from willful, wanton, or personal injury.

Considering the petition in this light, the defendant was clearly not liable for any injuries perpetrated by third persons, and this principle would apply also to its own servants, for if the assault was made by one of these such conduct would not arise out of any duty owed plaintiff by the carrier, but would be an independent wrong committed by the servant as an individual and out of line of his duty for which the doctrine of respondeat superior could not be invoked.

Wherefore, perceiving no error, the judgment is affirmed.

Ky.App. 1927.
300 S.W. 593, 222 Ky. 190

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