67 P. 534 | Kan. | 1902
George Potter, a child of six years, while crossing the tracks of plaintiff in error in the city of Lamed, was run upon by one of its trains and injured. He instituted this action by his next friend, John Potter, to recover damages, and judgment was rendered in his favor. The amended petition alleged that while this child was attempting to pass from the south to the north of the company’s right of way and over its tracks, not at a public crossing, but at a place where the public had acquired an implied license to cross by reason of long and continuous use by foot-passengers, with the knowledge of and without objection by the railway company, the latter, through its servants and employees, carelessly and negligently ran one of its trains upon and over him, causing him such injury that it became necessary to amputate one of his legs.
Broadway, Topeka and Tolies avenues in the city of Larned run north and south, and Fourth and Fifth streets east and west. The right of way and tracks of plaintiff in error enter the city from the northeast and cross Tolies avenue north of Fifth street and run in a southwesterly direction across Fifth and Fourth streets, Topeka avenue, and Broadway. Several years ago the city, by ordinance, vacated all of these streets where the right of way crosses. At the southwest, where the right of way crosses Fourth street, and between the Brinkman and Wormwood elevators, the former of which is built in Fourth street, there is kept and maintained a cinder path across Fourth street for foot-passengers. The depot and platform of plaintiff in error extend from the south line of Fifth street, between' Topeka and Tolies avenues, across Topeka
It is not claimed by plaintiff below that the place where the child was hurt was a public highway, but it is claimed that for several years prior to this accident the public had continuously crossed and recrossed at and in the immediate vicinity of where the boy was hurt, and, by reason of such constant and continuous use, with the knowledge of plaintiff in error, the public had acquired an implied license to cross at this point, and that, in view of this, it was the company’s duty to anticipate persons upon its right of way at this place. On the other hand, the plaintiff in error contends that the child was a trespasser and that the only duty it owed him was not wantonly to injure him, and that -it did not know he was upon the track until he cried out.
At the time of the accident George Potter was only six years old and lived with his parents on the south side of the tracks, on the same side the Wormwood elevator is situated. On the day of the accident he was sent by his parents to this elevator to meet an uncle, who was to take him to the country. He went to the elevator and waited for a time, but the uncle did not appear. He then started to go up town, and went to the cinder path crossing Fourth street, but, the passage being blocked with a train from the west, he
The freight-train that blocked the crossing at Fourth street only remained there while taking water, after which it pulled out northeast, not stopping at the station. The way at Fourth street was only blocked a few minutes. This, however, is immaterial in its application to the conduct of this child, as he is not chargeable with contributory negligence. The particular act of negligence relied on by the defendant in error is that the employees of the plaintiff in error, while switching, were pushing a box-car in front of the'engine at an unusually high rate of speed, and with no outlook on the front of said car, at a place where they should have anticipated that people might be crossing. When the plaintiff below concluded bis evidence the defendant demurred thereto, which demurrer was overruled.
Defendant in error objects to a consideration of this case by this court for the reason that the motion for a new trial was not filed during the term of court at which the case was tried. It appears from the record that on the day the jury returned its verdict the judge
At the trial George Potter testified that while attempting to cross the right of way he stood between the tracks five minutes at a time when the tracks were clear and that he might have crossed in safety. The first contention on the part of plaintiff in error is that in not crossing at this time the boy was guilty of contributory negligence and therefore it is not liable. If he had been a man of mature years and average intelligence this conclusion would be correct, but George Potter was a child of six years, and only chargeable with the proper exercise of the faculties which he then possessed. He could not understand the danger of going upon the railroad-tracks and cannot be held responsible for lack of capacity to appreciate danger. He is not chargeable with the exercise of that degree •of care demanded of one of mature years, whose judgment is not only enlightened by his own observation and experience but by the experience of others.
The plaintiff in error also insists that the court below erred in overruling its demurrer to the evidence. It contends that there was no evidence tending to establish the fact that the public had acquired an implied license, or had been invited to cross its private grounds at the place where this child was hurt; that he and all other persons crossing its right of way at that place were trespassers, and the only duty which it owed persons attempting to cross was not wantonly
Ed. Wheeler testified:
“Q,ues. You may state whether the public has-been in the habit of using that as a crossing. Ans. The public cross there like they do all through the yards.
“Q,. The grounds around the depot there? A. Yes,, sir.
“Q,. When there are no trains there, people are in the habit of taking the shortest cut home? A. Yes, sir.
“Q,, Now, for instance, the people living south, when they get off the train, where do they cross? A. Getting off, they would cross right there by the elevator, if they live in that direction ; if they live close there, they would cross wherever they want to go.
“Q,. Do you know whether the public has been in the habit of using the place where the boy Potter was injured as a public crossing? A. Yes, sir.
“Q,. Now, state the facts in relation thereto. A. They cross right in there.
“Q,. You may state how long this has been the habit and custom of the public, if you know. A. About fifteen years.
“Q, One place is just the same as another, so far as that is concerned? A. Yes, sir. But it is customai’y going down the depot platform, that is, everybody that lives down there; they go right across there by the elevator.”
“Ques. Do you know where the boy Potter is claimed to have been injured, on the 29th day of July, 1897? Ans. Yes, sir.
“ Q. Do you know what has been the general custom of the general public at that place? A. -Yes, sir.
“ Q. What is it? A. Sometimes they travel that path, and sometimes where the boy was run over/
“Q. How long has that custom existed, if you know? A. It has existed a good many years.
“Q. All of these grounds were the same; there was no crossing laid out anywhere by the railroad company — no plankings put in? A. No, sir; not right there.
“Q. Well, all around the depot grounds and in there, there is nothing to prevent — no fence or anything of that sort preventing a person crossing where-ever they see fit? No, sir.
‘ ‘ Q. They do cross there ? A. They cross where-ever they leave a gap.”
D. E. Babcock testified:
“Ques. Do you know the locality where it is claimed the train run over and injured George Potter, on the 29th day of July, 1897? Ans. I know about where it is.
“ Q. Do you know what has been the custom of the public in relation to traveling over that ground? A. I do.
“Q. What is it? A. Any one, either from the west part of town as far down as Fourth street, would be apt to cross if they were going to the Wormwood elevator, or in going to the depot from that way.
“Q. How long has that custom existed, if you know? A. Ever since I have lived here. I do not know how much longer.
“Q. There was- nothing to prevent people from wandering around in any part of the yard, unless there were cars in the yards? A. I think not.
“Q. They all cross there as much one place as another? A. I suppose. I do.
*20 “Q. Whichever is the shortest way to go? A. Yes, sir.”
A. E. Jordan testified:
“Ques. Do you know where the place is where it was claimed the Potter boy was injured? Ans. I know just about.
“Q. Now, do you know what the custom of the general public is, or what it was in July, 1897, in passing there — that is, foot-passengers? A. Yes, sir.
“Q. What was it? A. Why, we cross along that track when we go home, and when we go to the depot, or in getting on or off the train, generally crossing on the other side of the elevator.
“Q.. Is there a path along where the boy was injured? A. I guess there is no particular path along there ; they cross there almost any place.
“Q. You may state how long that custom has existed, if you know? A. Pretty much ever since I have lived there?”
L. P. Wormwood testified:
“Ques. Are you acquainted with the locality where it is claimed the train ran over the Potter boy, on the 29th day of July, 1897? Ans. Yes, sir.
‘ ‘ Q. Do you know what the custom of the public was at that time in relation to crossing the railroad track in that locality? A. I suppose they go back and forth there. I occasionally see them go back and forth there most every day.
“Q. There is nothing to prevent them from crossing one place any more than another ; it is perfectly open and smooth? A. Persons cross there if they want to go back and forth.”
The plaintiff below failing to prove an implied license or consent on the part of plaintiff in error to the public to use its yards for a public crossing at or in the vicinity of the place where young Potter was injured, the demurrer to the evidence should have been sustained.
In Mason v. Chicago, St. Paul, Minneapolis & Omaha R. Co., 89 Wis. 151, 61 N. W. 301, it was said:
“Certainly, mere desultory, occasional or fugitive use of a railroad yard by pedestrians at different places cannot impose any duty to exercise more than ordinary care on the employees of the company; the travel must be confined to a certain and well-defined way; it must have been so continuous, frequent and. well established as to raise an inference of acquiescence in such use on the part of the company, and to impose upon employees the duty of anticipating that the path might or probably would be in use by foot-passengers when cars were being moved across it.”
The evidence in this case falls short of bringing the
One witness testified that this space was generally blocked with empty and standing cars, and that persons desiring to cross climbed over or crawled' under them at the most convenient place. This evidence-negatives the idea that an invitation had been extended to the public to use these grounds as a crossing.
In Gaynor v. Old Colony & Newport Railway Company, 100 Mass. 208, 214, 97 Am. Dec. 96, 98, the court said:
“On the other hand, the law requires no one to provide protection or safeguards for mere trespassers or wrong-doers, nor indeed for those who enter by mere permission, without inducement held out by the owner. Such go at their own risk and enjoy the license subject to its perils. Towards them there exists no unfulfilled obligation or duty on the part of the owner."
In Ward v. Southern Pac. Co., 25 Ore. 433-436, 36 Pac. 166, 23 L. R. A. 715, the language of Mr. Justice Nelson in Grethen v. Chicago, M. & St. P. Ry. Co., 22 Fed. 609, is quoted, as follows:
“Persons living in the vicinity of railroads, who use the tracks or the embankments, or the space between the tracks, as a footpath, are wrong-doers, unless permission is granted by the company so to use*23 its tracks. Although pedestrians, or the public generally, travel over them without objection, people go there at their own risk, and, as said by the supreme court of Massachusetts, ‘enjoy the license subject to the perils.’ User of this sort will not establish a public way over the track or relieve those so using it from the imputation of being trespassers.”
Counsel for defendant in error undertake to fortify their position by citing the case of De Tarr v. Heim, 62 Kan. 188, 61 Pac. 689. In that case the public had habitually, for a period of years, passed over an outlying lot, from one street-railway depot to'another, until a well-defined path was made. This path had been covered with cinders for the convenience of public travel. A small building which stood over a vault, close to the path, had been removed, and the cover which had once been securely and safely placed upon it became out of repair. One of the public crossing over the lot, intending to walk on the path, missed her way and fell into the vault. It was said that this path had been used by the public for such a length of time that permission by the occupant and owner must be presumed. The difference between the facts in that case and those established by the defendant in error in this is that in this case no well-defined path was shown to exist. The material facts which, had it not been for other circumstances, would have established a liability in that case, are wanting in this.
The judgment of the court below is reversed, with instructions to sustain the demurrer.