No. 3172 | 6th Cir. | Mar 4, 1919
Writ to review judgment for defendant on sustaining demurrer to petition.
According to the petition, after defendant’s freight train, on the afternoon of a Sunday in June, had stood about half an hour on a track at die end of a public street running at right angles to the railway-track, thereby blocking passage over a long-existing and well-recognized pathway in common use (to the railway company’s knowledge), which pathway crossed the railway track on the extended line of the street, and led to a nearby and much-used picnic ground, plaintiff’s three year old child walked along the pathway and crawled under the standing freight train. His mother (the decedent) saw the child’s danger and attempted to rescue him by crawling under the train. While decedent was in that plight, the train was moved by defendant’s employés, without warning, and decedent thereby killed.
The negligence charged consisted in moving the train under ‘the circumstances stated without giving notice that it was to be moved, and in failing to have an employé stationed near the pathway to warn or prevent children from attempting to use it while the train was standing across it.
“The reason of the doctrine being that where the company has the exclusive right to the use of its tracks, and has neither impliedly nor expressly*496 licensed persons to be there, it has no reason to expect them, and consequently is under no obligation to be on the lookout, or to avoid injury to such persons. But where they may be expected to be, and where an implied license has arisen from the conduct of the company, it is bound to use care commensurate with the circumstances to avoid injury to such persons.”
We have also said that, where a train is cut in two to enable the public to cross the track, due warning is required before closing the gap. Southern Ry. v. Smith, supra, 214 Fed. at page 945, 131 C. C. A. 238.
It may be assumed that the petition would not be demurrable, had . it contained an allegation that the defendant’s employés knew of the child’s presence unattended and close to the track, or that it was likely to attempt to pass under the cars (Henderson v. Railroad Co., 52 Minn. 479" court="Minn." date_filed="1893-03-13" href="https://app.midpage.ai/document/henderson-v-st-paul--duluth-railroad-7967800?utm_source=webapp" opinion_id="7967800">52 Minn. 479, 55 N. W. 53), or that defendant’s employés had reason to believe that decedent had gone under the cars. But there is an entire absence of such allegation.
It may also be conceded, for the purposes of this opinion, but without so deciding, that, had the petition asserted that people were in the habit, to the knowledge of the railroad company, of passing along the pathway and through or under trains standing across it, a cause of action would be stated upon the theory that the presence of a traveler in such perilous position might reasonably be anticipated, as licensed by defendant. See, in this connection, McCarthy v. Railway (C. C. A. 2) 240 F. 602" court="2d Cir." date_filed="1917-02-06" href="https://app.midpage.ai/document/mccarthy-v-new-york-n-h--h-r-8802586?utm_source=webapp" opinion_id="8802586">240 Fed. 602, at page 609, 153 C.C.A. 406" court="2d Cir." date_filed="1917-02-06" href="https://app.midpage.ai/document/mccarthy-v-new-york-n-h--h-r-8802586?utm_source=webapp" opinion_id="8802586">153 C. C. A. 406 (foot). But, so far as shown by the petition, the defendant had no reason to apprehend that any one would attempt to pass under the train, unless from the mere fact that a much-used pathway crossed the right of way where the train was standing. The nearest approach to such allegation’ is in the statement that the defendant “knew or in the exercise of ordinary care should have known the use to which the pathway was put, and that men, women, and children used said pathway.” This obviously refers only to the general use of the crossing, not to its use when occupied by a train. No authorities are cited, and we have found none, which sustain the proposition- that a license to use the pathway over the tracks when not occupied by a train includes a license to cross when the pathway was so occupied, or, otherwise stated, that defendant was bound to assume, from the mere fact that the pathway over the tracks was in common use, that travelers would attempt to pass under the standing cars, or that in the absence of reason to so expect, or to believe that such attempt was being made, defendant was obliged to provide against the possibility of accident by giving notice that the train was about to be moved, or by having etnployéson the watch to'warn against or prevent attempts to so cross.
In our opinion the rule is to the contrary. Central R. R., etc., Co. v. Rylee, 87 Ga. 491" court="Ga." date_filed="1891-07-13" href="https://app.midpage.ai/document/central-railroad--banking-co-v-rylee-5564272?utm_source=webapp" opinion_id="5564272">87 Ga. 491, 13 S. E. 584, 13 L. R. A; 634; Papich v. Railroad Co. (Iowa) 167 N. W. 686. We should not be understood as committing ourselves to all that -is said in the case last cited on the subject of the railroad’s duty and liability.
The judgment of the District Court is reversed, with directions to give plaintiff opportunity to amend his petition.