66 F. 115 | 6th Cir. | 1895
after stating the facts as above, delivered the opinion of the court.
The most favorable statement of the circumstances immediately attendant upon the accident is that made by the defendant in error. The statement was that while in the yard of the appellant company, under the circumstances heretofore stated, and while making his way through that yard for the purpose of reaching the, passenger ferryboat, he was walking upon the most westerly of the yard tracks when he met an engine, with tender attached, coming from the direction of the depot; that he stepped oi¥ of
Plaintiff’s contention is that the railroad company was negligent in not warning him of his danger in time to get off the track. He says a switchman was seated on the rear end of the tender, Avith his legs hanging OArer, and that he should have seen the danger and given him notice. This very employ*? was introduced as a witness by the plaintiff, and he testifies that, as soon as he saw him on the track, he warned the engineer, but that there Avas not time to do more, for the rear of the tender struck him and the injury was done before anything could be done to avoid it. There was no evidence that any employé on the engine or tender was aware of the dangerous position of plaintiff until at the Arery moment of the collision, and no evidence that, after his danger became known, any effort to avoid injury would have aA'erted the catastrophe. The evidence as to whether a bell was being sounded Avas contradictory. If any duty rested'upon the railroad company to keep some one on the lookout ahead, or to keep a bell sounding, when engines or cars were being moved over its tracks and switches, then there was evidence tending to show negligence. But, if the liability of the railroad company depends upon the exercise of all reasonable precaution to avert the impending danger after it had knowledge of the dangerous position of the plaintiff, then the plaintiff made no case, and the request made to so instruct the jury, on the conclusion of all the evidence, should have been granted.
There was no question as to the duty of the railroad company at a public road crossing. This yard and these tracks were crossed by what the witnesses call a “paper street,” near the depot. But that way was several hundred feet north of where this accident
Was the railroad company guilty of any negligence? The answer depends upon the duty and obligation resting upon it in respect to a person.in its private switching yard under the circumstances detailed. When he crossed from Memphis to West Memphis, he did so in violation of the regulations of the company owning and operating the transfer boat, lie did so without the invitation of any one having authority to suspend that rule. Whether his presence on the boat was unobserved, or he was there by the improper connivance of those on the boat, is equally immaterial, for he was, in either event, there without legal right, and necessarily a trespasser. When he had concluded his visit to the west bank, and again entered the yard of the company, and again entered upon the boat, he resumed Ms status as a trespasser. This much the court distinctly charged. The only duty which the law imposed under such circumstances is that the owner thus intruded upon will not wantonly and unnecessarily inflict injury upon the trespasser.
The learned judge who presided upon the trial in the circuit court was of opinion that when he left the boat, under order of its officer, and undertook to make his way through the yard of the company to the public ferry, a little higher np the river, while going through the yard the duty of the company was to afford him that degree of protection due from the company t:o strangers in that yard, by some species of invitation or license, express or implied. The view entertained by the circuit court is best shown by his instruction to the jury on this point, in regard to which he said:
“I think any reasonable man will say that, because he was violating their rules and regulations in being on their boat, they had no right to embarrass him in any way by putting him off their boat, and then claiming lie was a trespasser on their grounds because he was a trespasser there originally. When they determined to enforce their rule that he should not come back across the river o-n their boat, they necessarily imposed upon him the <lnty, and it appears from the proof in this case, beyond any sort .of dispute, (.hat tlxe captain, or somebody on the boat whom he took to be the captain, told him he must go to the Bryan, and come back across (lie river on 1hat boat. He was undertaking to do that. Now, I say to you Unit it would be wholly unreasonable — and you know it would be unreasonable — -to say (hat iliat man, as against this company, putting him in that situation, was a trespasser upon their premises upon the other side of the river, if it was necessary for him to be on those premises to get to the ferryboat Bryan. However much he was an intruder on the boat, he was not an intruder on their premises when they put him off and would not bring him back, and they cannot hold him to tile responsibility of being a trespasser on their incline and tracks if you find from the circumstances and situation of that incline and those tracks that it was a reasonable thing for him to be in and about those tracks, and a necessary thing for him to be in and about those tracks to get to the ferryboat Bryan.”
“They dia not;” said the court, “in other words, license him to be oyer there, and give him a special privilege to go over their tracks and by their yard in order to get to the ferryboat Bryan; and X should not say, under the circumstances of this case, that he could be called a ‘licensee.’ He was neither a licensee nor a trespasser. He was an unfortunate man whom they refused to take across the river, and who had to go to another boat, and must pass over and across their tracks to do so, if you find the fact that way.”
As to the measure of care required from the company towards so anomalous aman, the court said to the jury:
“Now, what duty did they owe him? He seems to suggest by his counsel that they owed him some sort of a special duty to look out for him while he was in their yard and on their tracks, because they had put him there. I do not think he can claim that position under the law. They were not under an obligation to issue an order: ‘Look out for this man. We have put him off the transfer boat to go to the steamer Bryan. Keep a special lookout for him.’ They were under no such obligation to him. But they owed-to him that kind 'of reasonable care and diligence that every railroad company and every person running their engines would owe to a man found on weir tracks without fault upon his part”
If this view was entertained upon the assumption that the direction given as to the way to the ferry landing operated to send the appellee through this dangerous yard, which might have been avoided, then his honor was mistaken as to the locus in quo.- There was, at the then stage of the river, no way off the boat or premises of the railroad company that did not require the appellee to go through the yard and to the depot. When once there, he could turn to the left at the path or street which crossed the yard at that point, and thence west to the village, or he could turn to the right, and take the plankway down to the ferry. When the company discovered him thus intruding upon its boat, it had one of two things to do, — either to carry him over in violation of its rule, or to say to him, “Get off my boat, and get off my premises, and cross the river by the means open to you and all others.” If it carried him over, which, of course, it was not bound to do, he would have been subjected to the same kind of danger in getting up the incline and through its yard on the Memphis side as that which confronted him on the west side. His case was like that of a man found trespassing in the center of his neighbor’s premises. If ordered off, he must cross a portion of the premises to get off. Cook had so placed himself, of Ms own volition, that he was a trespasser where he was found, and must continue a trespasser until he could get off of the premises upon which he was intruding. To tell him where he could take the public ferryboat, and point out to him the way thereto, under the circumstances, did not operate as a license, and change the relation which he bore to the railroad company, or impose on it any duty which had not before rested upon it in regard to one who was on its premises without invitation, express or implied. The narrow embankment elevated above high water was covered with a network of railway tracks, at intervals connecting with each other. It was the place where trains were broken up, and outgoing trains made up. Engines and cars were
Plaintiff.was not rightfully in the yard; his being there was negligence. The railroad company owed him no duty except to avoid, after discovering his danger, any wanton or unnecessary injury being done him.
In a case decided by the supreme court of Arkansas, it was said:
“The plaintiff being wrongfully upon the track, no duty arose in his favor until his.presence was discovered, for the company had the right to run its trains without reference to the possibility that unauthorized persons might straggle upon its tracks. It was not bound to anticipate the intrusion. And, after he had been seen upon the track by the men in charge of the train, they might act upon the presumption that he would step aside in time to avoid a collision, unless it was so obvious that, owing to bis condition or circumstances over which he had no control, he could not extricate himself from the danger which menaced him. The sole duty which ihe corporation owed to him was not wantonly or with reckless carelessness to run over him after his situation was perceived.” Railroad Co. v. Monday, 49 Ark. 257, 4 S. W. 782.
The same rule was announced by this court iu the case of Mississippi Val. Co. v. Howe, 6 U. S. App. 185, 3 C. C. A. 121, and 52 Fed. 362, where the question was as to the liability of the railroad to one of its employés who had gone to sleep upon its tracks. We cite a few of the many cases which support the view we have announced: Nicholson v. Railway Co., 41 N. Y. 525; Saldana v. Railroad Co., 43 Fed. 862; Railroad Co. v. Stroud, 64 Miss. 784, 2 South. 171; Railroad Co. v. Cocke, 64 Tex. 158; Railway Co. v. Garcia, 75 Tex. 591, 13 S. W. 223.
But if it be assumed that plaintiff was a licensee, and that the railroad company was guilty of negligence in not sooner discovering his presence, yet the negligence of the plaintiff, under the undisputed facts of this case, so grossly contributed to his own injury as to bar any recovery. In such a place he was under the highest obligation to exercise the utmost degree of vigilance in looking out for approaching engines or cars. Notwithstanding the appellee knew that he was in the midst of a network of tracks and switches, he did not, after being driven off of one track, take the slightest precaution to look out for a train coming on him from the rear. A train immediately followed the engine to which he had given wav on the western track. The noise of its passage only made it the more important that he should use his eyes to see to it that no train ran on him from front or rear. If it he assumed that, when he crossed from one track to the other, he did look to the rear,
The request for a peremptory instruction should have been allowed. For this and the other errors we have indicated, the case must be remanded, with directions to award a new trial.