188 Mich. 313 | Mich. | 1915
Plaintiff brought this action as administrator of his infant son, George L. Hoover, who, on June 18, 1912, wandered from his home upon defendant’s track and was struck by a passing train, receiving injuries of which he died the following day. He was then 25 months of age.
The accident occurred about a mile east of the Plain-field Avenue station, in the city of. Grand Rapids, near the east line of an alley which runs north and south
It is conclusively shown, and undisputed, that when the train reached the College avenue bridge, and until it had proceeded a considerable distance east of there, the track was clear. Deceased was struck by the train just as, or after, he came upon the track from the side, accompanied by another small child of about the same age. The fireman was down on the deck of the engine at. his fires as the train approached this point. The engineer was in his seat on the right side of the cab, watching the track ahead through the front window provided for that purpose. His view along the line of the track from the bridge beyond the place of the
“One was on the outside of the rail and one inside the rail. * * * The very moment I first saw them they were right on the middle of the track. * * * The second I saw them I slapped the brakes in emergency and throwed my engine off. * * * I could not have done anything more than I did to stop the train.”
The train consisted of the engine, a baggage car, a mail and express car combined, and two passenger coaches. It was 220 feet long, running at 18 or 20 miles an hour, and could be stopped by using the emergency in from 300 to 400 feet. It ran a distance of from 40 to 100 feet after striking the children. The pilot threw them from the track, not seriously hurting the other child, but fatally injuring deceased. That the engineer acted promptly after seeing the children, did everything possible to meet the emergency, and made a good stop, is not seriously questioned. The complaint is that he should have seen them sooner.
At the close of the testimony a motion for a directed verdict in favor of defendant was granted, for the reason that no prima facie case of actionable negligence on the part of defendant was shown; that plaintiff’s contention that the engineer could and should have seen the children’s perilous condition sooner was
A motion by plaintiff for a new trial was denied. Aside from alleged errors in rulings during the trial and in directing a verdict, the ground of newly discovered evidence was also urged, based upon an affidavit of a woman living near by to the effect that from her window she saw the children upon the alley slowly approaching the track, and last noticed them when they were several feet south of a cinder path south of the track; that between a half minute and one minute later she heard the sound of brakes stopping the train, and, looking again, saw the two children had been thrown to the south side of the track, lying on the ground on or near the cinder path, and the engine stopped some distance beyond. Her house was situated 25 feet above the level of the track, and she also testified as to both her opportunities of observation and those of the engineer on a train approaching from the west. On denying this motion the court said:
“The newly discovered evidence as shown by the affidavit of Mrs. Davis would not change the result or add anything to plaintiff’s case.”
This witness was a near neighbor of plaintiff, and continued to live there until the time of the trial. With reasonable diligence her evidence could have been discovered and then produced. ■ She did not see the accident or the children upon the track. Her testimony
Plaintiff’s counsel group their assignments .of error, for argument, into the following propositions, interrogatively stated:
“(1) Was tljere any obligation of care on the part of defendant in keeping a lookout for children on the track at the place deceased was injured?
“(2) Was there error in excluding evidence that the maintaining of fences along the line of the right of way at this point would not interfere with railroad operations?
“(3) Was there on the trial or in the affidavit supporting the motion for a new trial evidence of negligence of the engineer in failing to keep a proper lookout in approaching the place where the injury occurred ?”
The first and third queries blend in argument and together involve the important and controlling question of whether a verdict for defendant was rightly directed.
As to the second, we do not discover from the record that defendant contends fencing, along the right of way would seriously interfere with railroad operations. On the contrary, it was shown that some years before the accident defendant had built fences along both sides of the right of way past the park and erected warning notices to prevent persons from trespassing upon the tracks in crossing to and from the park, but that these were repeatedly broken down and ignored by those who persisted in crossing there, until they had virtually disappeared, and the section foreman
It is well settled that railroads are not required to fence their yard limits, and a failure to do so is not evidence of negligence. Rabidon v. Railway Co., 115 Mich. 390 (73 N. W. 386, 39 L. R. A. 405) ; Burtram v. Railroad Co., 148 Mich. 166 (111 N. W. 749). The circumstances of this case show no express or implied invitation from defendant to cross its tracks at that point. The most that can be claimed is lack of constant vigilance to prevent, and that it suffered or tolerated such use.
“The status of a trespasser in going upon railroad tracks at a place other than a public crossing, without express or implied permission, will not ordinarily be affected by the fact that he or others of the public have been accustomed to walk upon or cross the tracks at that place, especially where repeated protests and warning against such use have been given. Nor, as a general rule, is the mere fact that the railroad company does not object or passively acquiesces in such custom sufficient to constitute such a person more than a trespasser, or at most a mere licensee.” 33 Cyc. p. 758.
The question of whether persons of accountability crossing the track at that point were in law trespassers or mere licensees by implication is, however, of little importance here, for it would be strangely
There can be no presumption from an implied license to the public to cross private property that helpless infants, too young to understand danger, will be permitted by those responsible for them to wander, when regular trains are passing, unattended along or upon a railroad track; and, on the other hand, the law recognizes that such infants are unaccountable, because unconscious of the nature of their acts, with no appreciation of attending danger to themselves or others, and therefore cannot be charged with contributory negligence nor held as wilful trespassers to an extent which precludes redress for injury resulting from the reckless or negligent acts of others. Battishill v. Humphreys, 64 Mich. 494 (31 N. W. 894) ; Huggett v. Erb, 182 Mich. 524 (148 N. W. 805). The latter case lays down no new doctrine and changes no previous rule, but, as applied to the case then under consideration, reiterates and points out the distinction, relating to trespass, involving danger of injury, between infants non sui juris and adults or those of sufficient age to realize the nature of their conduct, care for themselves, and be accountable for their acts. In that case two small children in the city of. Alma were playing along and walking down the track ahead of an approaching train, which struck and seriously injured one of them, unnoticed by the engineer or fireman, who first learned of the accident when they arrived at the next station. These children, not simply crossing the track, but walking along it, were not seen by the engineer at all. Although plaintiff’s evidence tended to show that the children, seen by others who sought from some distance to signal the train and reach them ahead of it,
Back of that lies the rule that at places where there is reason to anticipate that persons, including children, may be upon the track, as in cities and towns, the train cannot be operated upon the presumption that the track is clear and need not be watched, but a proper lookout must be maintained with that degree of care which a person of ordinary prudence and caution, having in mind both the safety of the train with its passengers and persons ahead likely to be injured by it, would commonly exercise under like circumstances, according to the probability of danger at the portion of the track being traversed.
The duty of strangers to children was early discussed, and the' rule clearly stated, in Hargreaves v. Deacon, 25 Mich. 1, where it is said:
“We feel, usually, more indignation at wrongs done to children than at wrongs done to others. But the law has not usually given them civil remedies on any such basis. Nor does it usually, if ever, impose any duties on strangers towards them, resting entirely on the fact that they are children. Those who have any*323 special dealings with them, as parents, teachers, and employers, incur obligations appropriate to their relations, and differing from those incurred towards others in proportion to-the necessity of care and protection and the risk of injury. But those who have no such relations with them are not liable for negligence in carrying on their own business, beyond what would be their liability to others, as well as children, who are equally free from blame.”
In the Huggett Case and Green v. Railway Co., 110 Mich. 648 (68 N. W. 988), cited by plaintiff as analogous in facts and supporting his contentions, being cases in which children of near the same age as deceased wandered upon tracks and were struck by passing trains, the controlling reason for holding them cases for a jury was that the records contained testimony showing no lookout was maintained; that the children, plainly in sight upon the track, were not seen at all by any of the train crew before the accident, and no attempt was made to avoid injuring them, while here a watch along the track was kept by the engineer, who did see the children and made every effort to avoid injuring them as soon as they were seen. The only question here is whether there is any competent testimony in the case tending to show negligence in his not being more vigilant and prompt. The same distinction appears in Tutt v. Railway Co., 104 Fed. 741 (44 C. C. A. 320), resembling in certain particulars this case, and relied upon by plaintiff. It was there held under plaintiff’s testimony that the question of implied license was an issue for the jury; that “persons availing themselves of such implied license would not be trespassers, and the railroad company would come under a duty in respect to such licensees to exercise reasonable care in movement of its trains at points where it was bound to anticipate their presence”; and that it might properly be left to the jury to determine whether such management was negligent
Conceding this was a place where the presence of persons on the track was to be anticipated, no one was there when the train came in sight around the curve at the bridge. No person saw these children upon the track until the train was close to them, and the evidence of those who saw them is that they were not. The engineer, whose duty it was to see, and who testifies he was watching, estimates the distance at which they came upon the track ahead of the train at 150 to 200 feet. Welch, the foreman of that section, who came in from the east with his hand-car and pulled it off the track at Grand avenue as he saw the train coming around the curve at the bridge, testifies:
“When I first saw the train up beyond the bridge 1 did not see any children. I looked on the track, and did not see a soul on the track. * * * I could see between me and the train. There was nobody on the track. Then I turned immediately to my car and put it off. I did not see where these children came from. When I first saw them the train was just hitting them.”
The two other witnesses who saw the accident were a Mr. Boyes, a contractor who was putting in a sewer at Grand avenue which ran under the track, and his foreman, named Rens. When the train approached Boyes was some 60 feet away from the track, and from where he then stood some bushes obscured his view of the approaching train. His men were working at the sewer where it passed under the track, and he was watching for the train to notify them, if necessary. He testified in part:
“I had made several observations to the west to see about the train coming or hearing it. I had not at any time seen these children on the track, except immediately before the collision took place. When I first saw the children on the track I started to run and holler. I would not go over 8 or 10 feet until I could see College avenue, just to get through the evergreen trees. I saw the train just after I had made a few steps. It would be pretty hard for me to tell how close to the children the train was when I started to run, but it could not have been a great ways because it all happened in a few seconds. * * * Well, I don’t think the engine would be more than 200 feet from the children when I saw them.”
Rens stood on the track over the sewer and notified the men when he heard the train coming. He states he looked up to see the train, and saw no one on or near the track, heard the whistle and watched the train approach, then noticed some one go up the small embankment, and, as they got high enough so he could see, discovered it was two little children. He estimated the engine “would be probably 150 feet west of them when these little children stepped upon the track,” and that it ran about 60 feet after it struck them. He also states:
*326 “The children were just about at the ties at the time I first discovered them. * * * I saw this train all of the time after it left the bridge approximately until it struck the children. I did not see the children until they were stepping on these ties.”
While it is contended that modifying statements of these witnesses as to means of observation, seconds of time, and distances in feet raise opportunity for inference that the engineer could have seen them sooner and could have stopped quicker, we conclude from a careful reading of this record that there is no testimony which tends to negative their testimony that these children suddenly appeared upon the track and in view when the engine was within not over 200 feet of them and too near for the train to be stopped before reaching them; that this accident resulted from a sudden and unanticipated act of the child itself, was not to be anticipated, could not be foreseen, and therefore in the reasonable conduct of defendant’s business could not be guarded against. In such case there is no liability. Coessens v. Rapid Railway, 136 Mich. 481 (99 N. W. 751).
The judgment is affirmed.
