109 Iowa 14 | Iowa | 1899
Tbe deceased bad aided one Whitehead in loading stock in a car, and somewhat later had walked with him from town to the caboose of the train, on which the latter was about to leave, and both entered it. They were in conversation, but not transacting any business, and the
I. That deceased was a trespasser was established by the uncontradicted evidence. Not ,a passenger, nor in the caboose by license or invitation, the defendant owed him no active duty. He had no more right to enter and occupy the caboose, under the circumstances shown, than to stand on its track, where he would be conceded to be a trespasser. The mere fact that passengers might be carried furnishes no excuse to one not sustaining that l’elation for using the car. Cabooses and coaches are not ordinarily held out to the public as places for visiting or the transaction of business, and those not passengers or employes, who enter for such purposes, do so without right. It is not claimed, nor could it be under the evidence, that the deceased went on the car as an escort, or by way of rendering necessary assistance to a passenger, or by the license or permission of the company. See Railway Co. v. Lawton, 55 Ark. 428, 29 Am. St. 48, and note (s. c. 18 S. W. Rep. 543). The situation of the deceased was not different from that of a person stealing a ride, to whom the company owes no duty, save that of refraining from willful or wanton injury. Railway Co. v. Brooks, 81 Ill. 249; Railroad Co., v. Meacham, 91 Tenn. Sup. 428 (19 S. W. Rep. 232); Dowd v. Railway Co., 84 Wis. 105 (54 N. W. Rep. 24); Gillis v. Railroad Co., 59 Pa. St. 129; Railroad Co. v. Harris, 11 Miss. 74 (14 South. Rep. 263). In the last case the court said: “To the trespassers on its trains, just as to trespassers on its tracks, the railroad company owe precisely the same duty which it owes to all mankind, and this duty is exactly what each man owes to every other; that is, abstention from wanton and willful injury in the use of one’s property.” The rule is thus stated in 3 Elliott Railroads, section) 1255 : “A railroad company owes trespassers no contract duty. Indeed, as already stated, the general rule is that it owes them no duty, except not to will
II. The eleventh instruction was erroneous in submitting whether Earl was rightfully in the caboose. As we have seen, he was there as a trespasser, and his presence was unknown to any of the defendant’s employes. The court instructed the jury that, “if you further find that the defendant’s agent or employe, in handling, managing, or operating said train, or in running, handling, and operating the extra freight train alleged, performed such duties in a manner so unusual or reckless as to cause the collision alleged, and endangered the lives or safety of persons who might be rightfully in said caboose, then they were guilty of negligence, and if the death of plaintiff’s intestate was caused thereby, and if such negligence on the part of defendant’s agents or employes was the natural, immediate, and proximate cause of the death of said Earl, and if he was not guilty of negligence contributing thereto, then, and in such case, defendant would be liable, notwithstanding' the fact that lie was not a passenger on said train at the time of the accident,; and not