84 F. 596 | 5th Cir. | 1898
The original declaration and its amendments show: That the plaintiff was the mother of two children, — one a son aged 11 years, and the other a daughter aged 7 years. They resided on Mangum street, in the city of A llanta, where the plain (iff kept a boarding house, and was assisted by these children. The children were attending school on Marietta street, in tine city of Atlanta. About noon on September 12, 1895, they were passing from the school to their home over and along a floored trestle of the defendant railroad company over Rhodes street, in the city of Atlanta; and while so passing over said trestle an oil-tank car in possession of, and being operated by, the defendant, ran over these children, and inflicted such personal injuries as caused the immediate death of (he boy, and the death of the girl within a few hours. The floored trestle or bridge over Rhodes street is 30 feet wide, and is closely covered with heavy, two-inch plank, securely nailed, making a line, level walkway. That the tracks of the railroad at the bridge, and for some distance from each end of same, run parallel with, and adjacent to, Elliott street. That, before the railroad was built, Mechanic street entered into Elliott street near one end of said trestle, but was exit off by the railroad embankment, and now stops at the railroad; and on the south side of the railroad, next to Elliott street, there is a deep descent into Elliott street, 50 feet down this embankment, down which people never go, but turn up said railroad, across the floored trestle or bridge, and go into Elliott street beyond the bridge, where the railroad and the street are on a grade. That, at 150 feet from each end of the bridge, Elliott street is on a grade with the railroad, but immediately at the bridge it is 60 feet below the grade of the railroad; and Mechanic street, coming right up to the railroad at the commencement of the trestle, was stopped there by the railroad and trestle, and the only connection between that street and West Hunter street, at ihe other end of said trestle, along which two streets (Mechanic and West Hunter) the children were going home, was over the trestle. That men, women, and children had for 10 years prior to that time (September 12, 1895), in great numbers, passed over that trestle daily, and that they were so passing over the same was known to the officers of the railroad company, and to the servants of the railroad company then managing and controlling said oil-tank car. That there is an ordinance of the city of Atlanta pro
The demurrer being general, and the judgment thereon general, the single error is assigned that the court erred in its judgment. There is nothing in the record to indicate on what particular ground or grounds the circuit court sustained the general demurrer. We gather from the briefs of counsel that the defendant railroad company contended in the circuit court, as it does in this court, that the children were trespassers upon the track of the defendant company’s
The question as to whether persons are or áre not trespassers upon the track of a railroad company is generally one of fact, or of mixed law and fact. The evidence may be so undisputed and so clear in some cases as to authorize the court to declare that the parties are or are not trespassers, but such cases are now rare. In the beginning and early history of railroad operations, the number of such roads, and the number of their tracks and of the trains run thereon, were so limited, and all of the features so novel, that their actual presence at any point was a signal that arrested attention, and gave warning for the exercise of care by all who wished to pass across or along their tracks. The tracks and trains were run only where the pre-existing community felt the need for them, and gladly gave the companies the paramount rigid of way at public and licensed crossings, and exclusive right: of way at all other points. The number of running trains was small, and the rate of speed moderate; and it was not then necessary, or deemed prudent, to run the roads into, and through the business centers of, such towns as Atlanta. Within comparatively a few years through passenger ¡.rains of Pullman sleepers from our national capital to our commercial capital were drawn through Baltimore by teams of horses. Now, the railroad companies, by contract, or by the exercise of the delegated power of eminent domain, push and concentrate their roads, and multiply their tracks, into the hearts of most of the capital towns of the country. When ihe question as to who were trespassers on railroad tracks, and what duty, if any, the companies owed to such persons, first demanded judicial decision, analogies were sought in reported cases arising out of other operations, and out of injuries received by strangers on the private premises of others. Guided by the analogies of such cases, which then appeared to be close and instructive, and which were more helpful then than now, it appears to have been held that all were trespassers on a railroad track who could not claim the right under some public regulation, some contract of the parties, the invitation of the corporation, or such notorious use continued for such time as would give a right by the longest period of prescription for acquiring an interest: in land, and that the corporation owed no duty to those who were trespassers. It soon became manifest
What we have already said clearly indicates that, in our view, the question of whether the use of the trestle had been such as to constitute an implied license to the public to pass over it, and relieve the children of the charge of being trespassers, should have been submitted to the jury. This view, we think, is supported by the great weight of recent decisions. The cases are so numerous that to review them would be tedious and unprofitable. We cite only a few, which, with those to which they refer, sufficiently show the present state of the authorities: Bennett v. Railroad Co., 102 U. S. 577; Fletcher v.
The elementary principle, fundamental in all civilized life, to test that degree of care, the absence of the reasonable use of which constitutes culpable negligence, is that a party must so use his own, and so conduct himself, as he would have a right to expect that another, honest, reasonably prudent, and humane, would do under similar circuías!anees. Subject to certain well-settled limitations, the lit adjustment of this principle to the infinitely varying conditions of particular cases can best be made by the jury. It is. clear to us that if the defendant was negligent in the handling of the oil-tank car in question, in its yards at the junction of Fair street, by which the car escaped from control, and rushed down the track at a great speed, and across the bridge on which the children were, and indicted the injury of which they died, the cause was direct and proximate, and the defendant could not be relieved on the ground -that the 'cause was remote, and the ('fleet not to have been expected. There is in the declaration no suggestion of any act upon the part of the children that would constitute negligence, other than the mere fact of their being run down and killed by a blind car coming on them from the rear at a fearfully excessive rate of speed, without any signal or note of warning other than the noise that the movement of a single car would make, which, even to ears of adult experience, must have been inaudible at the given time and place. As already suggested, the test to be applied to a given state of facts, either by court or jury, to determine whether they constitute negligence, is onr common knowledge of what would be (he conduct of a reasonably prudent person of like age and experience in like circumstances. The same degree of care is not expected of children of the age of 7 and 11 years that could reasonably be exacted of mature persons, having the experience which comes as all experience does with maturing years. This circumstance of age, however, like all the other circumstances of the situation, is an element of proof to be considered by the jury in finding the presence or absence of contributory negligence. We conclude, therefore, that the circuit court erred in sustaining the general demurrer to plaintiff’s declaration, for which error its judgment is reversed,. and the cause is remanded to lhat court, with directions to overrule the demurrer and award the plaintiff a venire. Beversed and remanded.