89 Wash. 527 | Wash. | 1916
Joseph Imler, while walking along the track of the defendant railway company on the evening of the fourth of November, 1912, was struck and killed by one of the defendant’s work trains. The place of the accident was between the stations of Centraba and Bucoda, where the company maintains a double-track railway which is fenced and guarded at all proper places with cattle guards.
Imler had been at work during the day at a farm about a mile and a half south of Bucoda, where he lived. He left the place of his employment about dusk and followed a road or footpath to the right of way of respondent company. He entered on the right of way either through, or by climbing over, a gate which had been left for the convenience of the owner of the land, the place having been formerly maintained as a private crossing. The crossing had been abandoned about three years before when the company double tracked its road. The gates had not been removed. Imler had apparently gone but a short distance in the direction of Bu-coda when he was struck and killed.
The testimony shows, notwithstanding the fact that respondent maintained a double-track railroad, a part of its transcontinental system over which some forty trains passed each way every day, and with the track properly guarded, that the people in the neighborhood had for a long time been accustomed to use the right of way and the tracks as a footpath in going to and from their homes situated near the tracks. At times some had ridden bicycles along and between the tracks. One witness testifies that he had ridden a motorcycle, and another that he had seen a man riding along the tracks on horseback.
Negligence is charged in that respondents’ train was running against traffic, that is, running north on the southbound tracks; that the headlight was not burning or was so defective as to give no warning; that the train was running at an excessive rate of speed (the testimony does not sustain a finding that it was running more than thirty-five miles an hour) ; that, at the time of the happening of the accident, a north-bound passenger train equipped with a powerful electric headlight, and with cars and coaches brilliantly lighted, was going north on the north-bound track; that the lights from the passenger train sufficiently lighted the track and that portion of the right of way upon which the deceased was walking to enable the engineer and fireman to see and observe him in time to give him warning of his peril; and further, that the noise and light caused by the passing of the passenger train held the attention of the deceased, and he relied upon the fact that the west track was habitually used by south-bound trains, and was induced to believe that the south-bound track was, and would be, free and clear of obstructions from behind, and the light and noise and confusion of the passenger train made it impossible for him to hear and discover the approach of the work train.
It is shown that deceased was about forty-five years of age, in the possession of all of his faculties, and had, at one time, been a section hand working* along the track where he was killed, and hence had knowledge of the frequent use of the tracks. As material to the history of the case although not a fact essential to our holding, there was a public highway leading into Bucoda at about the same distance from the place where the deceased was working as was the railroad
Much of the briefs are taken up with the discussion of the inquiry as to whether deceased was a trespasser or licensee. We shall not inquire whether deceased was a trespasser. We shall assume that he was a licensee, although it may well be doubted whether any person can claim a license to use a railway track, more especially the double-track of a transcontinental system over which trains run with great frequency, as a footpath where, as in this case, the track is laid in the open and between stations and is fenced and guarded. Under such circumstances, it has been held that a use, however long continued, will not imply a license. Burg v. Chicago, R. I. & P. Co., 90 Iowa 106, 57 N. W. 680, 48 Am. St. 419; Ward v. Southern Pac. Co., 25 Ore. 433, 36 Pac. 166, 23 L. R. A. 715. And such would seem to be the logical result of the opinion of this court in the case of Hamlin v. Columbia & Puget Sound R. Co., 37 Wash. 448, 79 Pac. 991, and Dotta v. Northern Pac. R. Co., 36 Wash. 506, 79 Pac. 32. The duty of a railroad company to a licensee is defined in the case of McConkey v. Oregon R. & Nav. Co., 35 Wash. 55, 76 Pac. 526, as follows:
“In the case of the licensee the company when moving trains is charged with the additional duty of being in a state of expectancy as to the probable presence of persons upon the track at places where travel thereon is known to be customary and frequent. The care required in the case of the licensee, therefore, calls for both reasonable lookout in advance and a reasonable effort to avoid injury after presence is discovered.”
The determinative question is, therefore, whether the engineer and fireman, or either of them, discovered the presence of the deceased and his peril in time to avoid the accident.
There is no testimony that would warrant us in holding that respondents’ agents were remiss in the performance of
In Spicer v. Chesapeake & O. R. Co., 34 W. Va. 514, 12 S. E. 553, 11 L. R. A. 385, a recovery was denied under the following state of facts:
“He is not at a street crossing, but purely for his own convenience is walking on the track from Sixteenth to Twentieth street; and, seeing a train moving towards him on the track on which he is walking, he steps upon the next track; and being blinded by the headlight of the engine approaching, and his hearing dulled by it, or more likely because he did not look for a train on the track to which he stepped, he is scarcely on that track before he is struck by a train which is being backed from the depot to the shops, receiving injury, from which he dies in about an hour. No one questions that the company was simply exercising on ground belonging to it, its lawful business, and that the deceased was not in the public highway, but using the track for his own convenience, when he could have used a walk or path but a few yards distant, outside the tracks, or an alley hut a short distance further away. What duty did the company owe him under these circumstances except that it should not wilfully or wantonly hurt him? Where could the deceased have found a more deadly, dangerous walk? And he was fully aware of this, for he was an employe of the company, was well acquainted with the yard and works of the company there, but not in service in the yard nor on duty then or there. Indeed, his daily contact and familiarity with the railroad operations lulled him into a feeling of security and negligence which cost him his life, when but twenty-one or twenty-two years of age. He was in possession of all the natural senses and faculties which tell of danger, and aid us in self-preservation amid perils surrounding us.”
Although there is no testimony to sustain it, we think the assumption of appellants, as set forth in that part of their complaint describing the presence of the passenger train, is
“The court properly instructed the jury that the defendant had the right to use either track, as otherwise they might have thought it negligent for the defendant to run the train in question on the east track. Persons who walk along a railroad track are under obligations to keep out of the way of trains, and they cannot complain that the train is run on one track and not on another. There was nothing in the plaintiff’s conduct to apprise the operatives of the train that he was ignorant of its approach, or to impose upon them the duty of taking extra precautions for his safety, until he, without looking back to see if the train was coming, suddenly placed himself in peril when the train was right upon him.”
See, also, Morgan v. Northern Pac. R. Co., 196 Fed. 449.
In Northern Pac. R. Co. v. Jones, 144 Fed. 47, instead of running against traffic, a train was running off its schedule. The court in holding that the company was not negligent in so operating its trains, said:
“In Louisville & N. Ry. Co. v. McClish, it was said: ‘Even in the case of a licensee, there is, under such circumstances, the highest duty to exercise the utmost degree of vigilance in looking out for approaching engines or cars. . . . The track is the property of the railroad company, which it has the legal right to use at any and all times.’
“The rule is well established that it is the duty of a traveler to stop and look and listen before crossing or walking*534 along a railroad track. He has no right to assume at any time of the day or night that trains will not be run over the track. Railroad Company v. Houston, 95 U. S. 697, 24 L. Ed. 542; Schofield v. Chicago & St. P. Ry. Co., 114 U. S. 615, 5 Sup. Ct. 1125, 29 L. Ed. 224; Northern Pacific Railroad v. Freeman, 174 U. S. 379, 19 Sup. Ct. 763, 43 L. Ed. 1014.
“Said the court in Elliott v. Chicago, M. & St. P. Ry. Co., 150 U. S. 248, 14 Sup. Ct. 85, 37 L. Ed. 1068: ‘The track itself, as it seems necessary to iterate and reiterate, is itself a warning. It is a place of danger. It can never be assumed that cars are not approaching on a track, or that there is no danger therefrom.’
“The defendant in error was a miner of the age of 34 years, and was in the full possession of his senses. According to his own testimony, he walked upon the railroad track a distance of more than half a mile without once looking back or stopping to listen for an approaching train. In. so doing, it must be held that he was guilty of gross negligence, which, irrespective of negligence in the failure of the engineer to discover him on the track, is sufficient to bar his right of recovery. It was no excuse for his failure to take such precautions that the wind was blowing in his face, or that the noise of a waterfall may have deadened the sound of an approaching train. Those circumstances only render the use of his senses the more imperative. It was his duty continually to exercise vigilance.”
We attach no importance to the contention that the headlight on the train was not burning, or was so dim as to afford no protection to the deceased. There is no testimony even tending to show that the lack of a headlight or its defective character was the proximate cause of the injury. Appellants’ testimony shows that the electric headlight of the passenger train illuminated the track and the right of way. Another headlight would have added no security to the deceased.
Appellants rely principally on the cases of Roth v. Union Depot Co., 13 Wash. 525, 43 Pac. 641, 44 Pac. 253, 31 L. R.
The crossing cases may be further distinguished. They rest in implied license upon legal grounds as differentiated from the acts or conduct of the parties as they may arise in a particular case. , In consequence, a duty is put upon the court in all such cases to measure the relative rights as well as the relative obligations of the parties to' the action. The company is held to a rule of strict accountability, because it is necessary for men and traffic to cross railway tracks in the pursuit of their legitimate undertakings and conveniences. The law charges a company with a knowledge that they will do so. Whereas, one who walks along a railroad track using it as a footpath, especially where the track is in the country and fenced, cannot claim the protection given to those who do things of necessity, for, from the very nature of things, he is using the track for his personal comfort and convenience. Men must, and therefore may, move from one side of a track to another at places established by the company, or so long used by the public as to imply a license, resting under the as
There is no merit in the contention that the respondents’ engineer had an unobstructed view of the track for more than a mile and should have discovered the peril of the deceased. There is no evidence that deceased was on the track, and we cannot hold, as a matter of law, that the engineer was bound to anticipate that a man walking along the right of way would step in front of a railway train without exercising any care for his own safety.
Affirmed.
Morris, C. J., Fullerton, Mount, and Ellis, JJ., concur.