240 F. 602 | 2d Cir. | 1917
This is an action to recover damages for causing the death of the plaintiff’s son through negligence. The court below dismissed the complaint on the ground that there was no evidence showing negligence on the part of defendant. The accident which resulted in decedent’s death occurred on April 24, 1902. The action was commenced in December, 1902. It was not brought on for trial until May 8, 1912, and judgment was not entered until January 11, 1916. It is understood that the long delay in the prosecution of the suit was occasioned by the plaintiff’s lack of means.
The intestate resided with his father, the plaintiff, and at the time of his death was between six and seven years of age. The house they occupied was rented from defendant, the 'premises abutting on defendant’s right of way. The decedent was on the tracks of defendant when he met his death. The objection was not taken that there could be no recovery as matter of law because of the negligence of the child’s parents in letting the decedent, non sui juris, run around alone. This objection, not having been raised, will not be considered.
*605 “No railroad need be fenced, wben not necessary to prevent horses, cattle, sheep and hogs from1 going upon its track from adjoining lands.”
By implication the wording of this statute does not apply to persons, and it has been so held. See Clarke v. New York Central, 104 App. Div. 167, 170, 93 N. Y. Supp. 525.
The appellant calls our attention to the case of Hayes v. Michigan Central R. R. Co., 111 U. S. 228, 4 Sup. Ct. 369, 28 L. Ed. 410 (1884). In that case a boy between eight and nine years of age, but deaf and dumb, was struck by defendant’s train, one or more wheels of a car passing over his left arm, necessitating its amputation at the shoulder. The line of railroad ran parallel with and adjacent to a public park in which the boy had been at play. The railroad company had failed to build a fence between the park and the tracks at the point where the accident occurred. The court below directed the jury to return a verdict for defendant. But the Supreme Court reversed the judgment and awarded a new trial, and held that, as the defendant railroad had failed to fence, the plaintiff could maintain an action and recover if he established the fact that the accident was reasonably connected with the failure to fence. In its opinion the court said:
“To leave tbe space between tbe park and tbe breakwater, traversed by tbe numerous tracks of tbe railroad company, open and free, under tbe circumstances in proof, was a constant invitation to crowds of men, women, and children frequenting tbe park to push across tbe tracks at all points to tbe breakwater, for1 recreation and amusem'ent, at the risk of being run down by constantly passing trains. A fence upon the line between them might have served at least as notice and signal of danger, if not as an obstacle and prevention. For young children, for whose health and recreation tbe park is presumably in part intended, and as irresponsible in many cases as tbe dumb cattle, for whom a fence is admitted to be some protection, such an impediment to straying might prove of value and importance.”
In that case the railroad company, however, had the duty imposed upon it by a municipal ordinance, which had the force of a statute, to fence within the municipal limits; and the language of the ordinance clearly indicated that the purpose ‘of the requirement of fencing was for the protection of persons and property as well as of animals from danger. The opinion makes it plain that the decision rested on the ordinance.
“The rule may be thus stated, when it is realized by those in charge of an engine or train that one, though a trespasser, will not or cannot save himself, and will be injured unless they can prevent it, then it is their duty, by the use of all the means at hand, consistent with the safety of the passengers, engine, or train, to do all in their power to prevent it; and the failure to do so, when the injury could thereby have been avoided, is negligence for which the company and such emp-loyés will be liable, notwithstanding the antecedent negligence or contributory negligence of one so injured. It is universally agreed that this rule applies to all cases in which the defendant or his agent is actually aware of the plaintiff’s danger. Thus a locomotive engineer or motorman, after becoming aware of the presence of any person on or dangerously near the track, however imprudently or wrongfully, is bound to use as much care to avoid injury to him as he ought to use in favor of one lawfully and properly upon the track; that is to say, ordinary care with respect to anticipating injury before it becomes imminent, and the utmost care and diligence of which he is personally capable after he knows that it is imminent. He must promptly use all the usual signals to warn the trespasser of danger, and he must also check the speed of his train, and even bring it to a full stop, if necessary, unless the circumstances are such as to justify him, acting prudently, in believing that the traveler sees or hears the train and will step off the track in'ample time to avoid all danger, without any diminution of speed of the train. These rules apply to all cases, even of the most outrageous negligence on the part of a person on the track, as, for example, where a person attempts to cross in the very front of a train, or where children or drunkards have actually fallen asleep lying across the rails.”
That there was an unobstructed view of the track for half a mile or more is unimportant, unless it was the duty of the defendant to have availed itself of this unobstructed view and to have observed whether its track was clear. Such a duty might have rested on defendant if its train had been approaching a crossing or a point where the public had been permitted to use the tracks as a pathway, so that it was bound to anticipate the presence of persons on the roadbed. That, however, is not this case. The defendant did not invite, entice, allure, or induce the decedent or any other person to come upon the tracks where this accident happened, and was under no obligation to anticipate the decedent’s presence or the presence of any other persons
“Where no statute controls, the common law must determine the legal duty of a railway company in respect of the proper and prudent movement of its trains. That such companies have the right to a clear track, except where the public have also an easement of way, must be conceded. But upon its general track, where the public have no equal easement or right of way, a railroad company may operate its trainsi without regard to the possibility that unauthorized persons may be trespassers thereon. It need not anticipate the presence of such intruders, either upon its general track or in its strictly private yards.”
“It is .the settled law of this court that ‘when the evidence given at the trial, with all inferences that the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant’ (Randall v. Baltimore & Ohio Railroad, 109 U. S. 478, 482 [3 Sup. Ct. 322, 27 L. Ed. 1003]; Gunther v. Liverpool, etc., Ins. Co., 134 U. S. 110 [10 Sup., Ct. 448, 33 L. Ed. 857]); while, on the other hand, the case should be left to the jury, unless the conclusion follows, as matter of law, that no recovery can be had upon any view which can be properly taken of the facts the evidence tends to establish (Dunlap v. Northeastern Railroad Co., 130 U. S. 649 [9 Sup. Ct. 647, 32 L. Ed. 1058]).”
The engineer testified positively that he sounded his whistle as soon as he saw the boy on the track, or alongside of the track, and that he at once put on the emergency brake. On the other hand, the engineer testified that the boy was not sitting on the track, but was run- . ning o.n the track right towards him when he discovered him; “the little fellow was just going over on the inside rail of my track.” And he also testified that he immediately blew his whistle and put on 'the emergency brake.
The conflict of evidence under the circumstances is not important, for the reason that there is no evidence in the record which shows that the engineer saw the decedent before he was within 30 feet of him, and there is no evidence in the record which made it the duty of those in charge of the engine to have been looking ahead as they were approaching the locus in quo to see that the track was free from trespassers, and so sooner to have discovered the decedent. In New York, N. H. & H. R. Co. v. Kmetz, 193 Fed. 603, 607, 113 C. C. A. 471, 475 (1912), we there said:
“The engineer and fireman of the train which, according to the testimony, probably struck the plaintiff, both testified that they did not see him upon the track and did not know of the accident until some time afterwards. They are therefore left in this dilemma. If what they say is true, the jury m’ay have found that .they were guilty of negligence in not seeing the plaintiff. It is the duty of the engineer, or the fireman, * * * to look ahead, especially when passing through towns and villages, and where, as in this case, little children are constantly passing to and from school. At such a place it was clearly the duty of the engine driver to be on the alert. If, on the other hand, the engineer and fireman did see the plaintiff on the track, they should at least have endeavored to save him by blowing the whistle vigorously and ringing the bell. They did neither, and no warning of any kind was given to the plaintiff.”
The facts in that case, however, show that the locus in quo was at a crossing, not a regular street crossing, but a place where residents of the neighborhood were in the habit of crossing to get to their mail, and where school children crossed four times a day, and which was used by the employes of the company. The use thus made of the tracks was open and notorious, and well known to the railroad officials. The facts in this case are entirely different, and no open and notorious use of the tracks had by long^ acquiescence or otherwise been permitted at the place of the accident, which made it the duty of those in charge of the engine to exercise great care in watching the tracks.
The company may be liable to a trespasser for its failure to exercise reasonable care to discover and avoid injuring him when it has reason to anticipate his presence. But there is no evidence in this case which indicates that this defendant had any reason to expect any person would be upon the tracks where this accident happened.
We must assume, therefore, if the decedent was not discovered until the engine was within 30 feet of,the decedent, the engine could not have been stopped in time to avoid striking the decedent, and if, in the brief, moment it took a train running 40 miles an hour to cover 30 feet the> engineer, in pulling on the emergency brake and trying to stop his train, actually failed to blow his whistle, his omission in that respect under the circumstances would not constitute such negligence as^ would justify a verdict against the defendant. There is no evidence* in the case of any wanton negligence. ^
Judgment affirmed.