165 F. 813 | U.S. Circuit Court for the District of Montana | 1908
(after stating the facts as above). Upon the agreed facts, it must he held that a depot is not a place which allures children of tender years, or that it holds out to them an implied invitation or special attraction to visit it.
It must be held, also, that the child, having strayed from his home, was upon the defendant’s depot platform without invitation, and, of course, without purpose other than childish curiosity and amusement, and that he was there without the knowledge of defendant’s servants. There was, therefore, in this case no special obligation resting upon defendant to guard the depot with active vigilance in order to protect the child going alone upon the platform. The doctrine of Railroad Company v. Stout. 17 Wall. 657, 21 L. Ed. 745, and U. P. R. Co. v. McDonald, 152 U. S. 262, 14 Sup. Ct. 619, 38 L. Ed. 434, the turntable cases, is inapplicable.
The case, then, resolves itself into this: The child, not being a passenger or one having business with the railroad company, and not having been seen by any of the railroad company’s employés or servants, leaned against the rear sleeping car just before the train moved. The train started. The child was thrown and injured. Clearly, if the defendant’s servauts had seen the child in the obviously imminent peril that he was in when leaning against the car, correct principles of law and instinctive rules of proper human caution would have made it their duty to have exercised every diligence to protect him against injury, irrespective of the fact that he was on the platform without right; and if they had failed in such duty, and the injury followed as a result of such negligence, the defendant would have been liable. Coasting Company v. Tolsom, 139 U. S. 551, 11 Sup. Ct. 653, 35 L. Ed. 270; Gilbert v. Erie R. Company, 97 Fed. 747, 38 C. C. A. 408.
But, as neither the conductor nor the other servants saw the child, the doctrine of discovered peril is inapplicable, unless that doctrine can be extended far enough to say that, notwithstanding the child was on the platform without technical right — let us call him a licensee — still, if the conduct of the defendant’s servants in not haying seen him was a failure to have exercised ordinary care, the defendant is liable. Or
My opinion is that the question must be answered in the negative. It is not difficult to suppose á situation where circumstances of probable immediate danger are such as to put a prudent man on his guard, requiring him to use ordinary care to avoid injury, and where omission to use such care after having notice of such danger will not prevent a recovery by a plaintiff, notwithstanding plaintiff’s own negligence has exposed him to the risk of injury. Richmond Traction Co. v. Martin’s Adm’x, 102 Va. 209, 45 S. E. 886. Denver & R. G. R. Co. v. Buffehr, 30 Colo. 27, 69 Pac. 582.
But this rule cannot be applied to the facts before the court, because defendant’s servants did not see the child or know of the child’s presence before the accident, or at the precise time thereof, and because, under the circumstances, the law imposed no duty upon them either to look back to the rear car to see if there was a child there in a position of danger, or to anticipate such a peril as the plaintiff voluntarily, and at law wrongfully, put himself in.
Were the case one where the child had been playing on the track in front of the locomotive, and the engineer had omitted to look ahead before he started liis train, negligence might be inferred; but there is no room for a contention that there was gross or wanton negligence. Or if we had an instance of a passenger injured by falling from the steps of the car because the conductor failed to see his passenger trying to mount the steps, and gave an order to start the train before the passenger had had a reasonable time to board the train, different rules would require consideration.
The circumstances surrounding the case impel the view that there was no difference between the duty of defendant to plaintiff and that which it owed to -an adult; and unless there was a legal duty, and a breach thereof, there can be no liability^. The conclusion follows that, inasmuch as there was no duty of protection against the particular injury suffered, omission to have furnished' such protection was not negligence.
Judgment for defendant.