98 P. 689 | Utah | 1908
Lead Opinion
Respondent brought this action against appellant to recover damages caused by the alleged negligence of appellant in running a train of cars over and killing respondent’s child, of about two years of age, which was on the railroad track near a country road crossing.
The facts developed at the trial are substantially as follows: The respondent at the time of the accident lived in Bannock county, Idaho, on a small farm or ranch about 1 mile east of a siding on appellant’s line of railroad, known as Topaz. Respondent’s house was about 235 feet south of appellant’s track. The country is described as somewhat rough on both sides of the track, and was sparsely settled, there being about ten or eleven families living within a radius of about one and one-half miles from respondent’s house, the nearest neighbor being about one-half mile dis
The court overruled a motion for nonsuit, and refused to direct a verdict for appellant, but submitted the case to the jury. Upon a verdict in favor of respondent judgment was duly entered, from which this appeal is prosecuted.
The theory upon which the trial court submitted the ease to the jury is shown by instruction numbered 11, which is as follows: “The court instructs you that it is the duty of the defendant company, through its proper employees, to exercise- ordinary care and diligence to prevent injury to a child of tender years who- they know, or, by the exercise of. reasonable and ordinary care, should know, is in a situation of danger on its track, even though that child may be a trespasser; and failure on the part of the railroad to use that degree of care in discovering the presence of a child of tender years upon its track, and preventing injury to the same, would be negligence upon the part of the railroad company. In determining this case, whether or not the defendant used that degree of care, you should take into- consideration all the circumstances as they are disclosed by the evidence, and the probability or improbability of a child trespassing at the time of the injury. The court further charges you that, as
The theory of the court, and upon which the case was tried, is perhaps best stated in his own language in a ruling made by him during the trial, as appears from the bill of exceptions, where he said: “The duty of the railroad company and the engineer to keep' a lookout was only for helpless children — children of tender years.” The instruction complained of fairly reflects this theory. As appears from the latter part of the instruction, the trial court recognized the fact that the deceased child was a trespasser. He assumed, however, that, in view of the fact that the child was but two years of age and therefore without judgment or discretion— practically helpless — there was a duty cast upon the appellant to exercise greater vigilance to discover the child on the track than would have been required of it in case of an adult or one old enough to exercise judgment and discretion for his own safety. Is this the law ?
Leaving out of consideration for the moment the question of contributory negligence and the duty devolving upon the operators of trains, in case a child or helpless human being is actually seen upon the track, the law with regard to vigilance to discover mere trespassers logically must be the same whether the trespasser be a child or an adult. This, we think, is held to be so by the great weight of authority. In 23 Am. & Eng. Enc. Law (2d Ed.), at page 736, the rule is tersely stated in the following language: “The fact that a person is an infant does not affect the relation of trespasser, but is material upon the question of his negligence in being
How and when does this higher degree of care arise? In case of an adult, or one of age having judgment and discretion, who is a trespasser and is seen standing or walking on the track, the train operator in the first instance would' have to do no more than give such a trespasser warning. When this has been done, the operator may assume that the trespasser will leave the track. Not so with a child of tender years. When such a child is discovered on the track, the train, operator may not assume that it will leave the track, but he must at once act upon the assumption that the child will remain, and, to prevent injury, he must slow down or stop the train before reaching the child, if this can be done without serious danger to the passengers on the train.
The rule is likewise stated in 3 Elliott on Railroads, section. 1260, p. 619, where the author says: “So it has been held in many cases that the railroad company is not obliged to keep a lookout for trespassing children upon its track, in ordinary circumstances, or move its ears with reference to them until their presence in danger is discovered.”
The particular circumstances under which a lookout may be required we will refer to later. ■
Railway Co. v. Williams, 69 Miss. 631, 12 South, 957, in some of its features, closely resembles the case at bar. In speaking of the duty of railway companies with respect to trespassers upon the track, the court, at page 640 of 69 Miss., at page 957 of 12 South., states the rale in the following language:
“The action of the court below, on the instructions for the respective parties, constrained the jury to hold the defendant company liable for a failure of the engineer to check or stop his train when he first saw an object, which he then thought to be something other than a human being, but which, at length, was discovered to be a child. The test of responsibility is, did the striking of the child by the train occur after the engineer had seen— not might or ought to have seen — that is, discerned, or distinguished the girl? Until the girl had been seen — discerned to be a human being — the engineer was under no obligation to the trespasser to check or stop his train, whatever may have been his obligation to*476 the passengers who were being hauled by him. When the engineer is made aware of the presence and peril of the trespasser by seeing him, he will willfully or wantonly do him hurt at the peril of his employer; hut, until made aware of the presence and peril of the trespasser, there can be no willful negligence or wanton misconduct toward the unrecognized, undiscerned trespasser.”
In the case of Felton v. Aubrey, 74 Fed. 350, 20 C. C. A. 436, the rule is stated in the syllabus as follows:
“A railway company owes no higher duty to an infant trespasser upon its tracks than, to an adult, and is not liable for injuries suffered by such a trespasser, unless, after the discovery of his presence on the track, it has failed to use ordinary care to avoid injuring him.”
The opinion is written by Mr. Justice Lurton, United States Circuit Judge, and thoroughly sustains the rule stated in the above quotation. In the course of the opinion, at page 356 of 74 Fed., at page 441 of 20 C. C. A., it is further said:
“The law imposes no duty in respect to trespassers upon its (the railroad company’s) track, ‘excepting that general duty which any one owes to any other person to do him no intentional wrong or injury. Its (the railroad company’s) liability to discharge this duty could only arise when it becomes aware of the danger in which he stood.’ The overwhelming weight of authority is in accord with this rule.”
. We shall have occasion to refer to this ease again on another point.
In the case of Thomas v. C. M. & St. P. Ry. Co., 93 Iowa 248, 61 N. W. 967, the rule is stated in the syllabus as follows: “A railroad company need1 not look out for trespassers. It owes him no duty except to avoid injuring him after he is actually seen. These rules apply to children incapable of contributory negligence.” In that case the rule and reasons upon which it rests are thoroughly discussed, and the court clearly points out that some of the courts have departed from the rule by reason that they have confounded the duty owing to infant trespassers with the question of their contributory negligence.
“We do not think that the tender age of one of these plaintiffs could have the effect to raise a duty where none otherwise existed. The supposed duties have regard to the public at large, and cannot well exist as to one portion of the public and not to another under the same circumstances. In this respect, children, women, and men are upon the same footing. In cases where certain duties exist, infants may require greater care than adults, or a different kind of care: the precautionary measures having for their object the protection of the public must, as a rule, have reference to all classes alike.”
It is manifest that, while a child may not be chargeable with contributory negligence, be may, nevertheless, be in a situation where he is a trespasser, and not entitled to a greater degree of vigilance to discover his presence than any one else would be. To establish any other rule would simply result in requiring the railroad company to keep a lookout always and everywhere for trespassers, and the presumption of a clear track would be entirely ignored.
The following cases all hold that there is no duty cast upon the railroad company to keep a lookout for trespassers, whether young or old. Burg v. C., R. I. & P. Ry., 90 Iowa 106, 57 N. W. 680, 48 Am. St. Rep. 419; Masser v. C., R. I. & P. Ry., 68 Iowa 602, 27 N. W. 776; Chrystal v. Troy & B. Ry. Co., 105 N. Y. 164, 11 N. E. 380; Ward v. S. P. Ry. Co., 25 Or. 433, 36 Pac. 166, 23 L. R. A. 715; Toomey v. S. P. Ry. Co., 86 Cal. 374, 24 Pac. 1074, 10 L. R. A. 139; Woodruff v. N. P. Ry. (C. C.), 47 Fed. 689; Morrissey v. E. P. Ry., 126 Mass. 377, 30 Am. Rep. 686; Wright v. B. & A. Ry., 142 Mass. 296, 7 N. E. 866; Scheffler v. Minn. & St. L. Ry., 32 Minn. 518, 21 N. W. 711; McDermott v. Ky. C. Ry. Co., 93 Ry. 408, 20 S. W. 380; Ry. Co. v. Williams, 69 Miss. 631, 12 South. 957; Williams v. Kas. City S. & M. Ry., 96 Mo. 275, 9 S. W. 573; Givens v. Ky. C. Ry. Co., 15 S. W. 1057, 12 Ky. Law Rep. 950; Thomas v. C., M. & St. P. Ry., 93 Iowa 248, 61 N. W. 967; I. C. Ry. Co. v.
The foregoing cases all involve trespasses by infants or children ranging in ages from eighteen months to ten or twelve years.
The following cases, while they involve trespassing adults, state the rule as the same is held to be in the foregoing cases: Baltimore, etc., Ry. Co. v. State, 62 Md. 479, 50 Am. Rep. 233; Spicer v. Chesapeake & O. R. Co., 34 W. Va. 514, 12 S. E. 553, 11 L. R. A. 385; Ry. Co. v. Graham, 95 Ind. 286, 48 Am. Rep. 719; State v. B. & O. Ry., 69 Md. 494, 16 Atl. 210, 9 Am. St. Rep. 436; Anderson v. C., St. P. & M. Ry., 87 Wis. 195, 58 N. W. 79, 23 L. R. A. 203; I. C. Ry. Co. v. Johnson, 97 S. W. 745, 30 Ky. Law Rep. 142; I. C. Ry. v. Eicher, 202 Ill. 556, 67 N. E. 376; C., C., C. & St. L. Ry. Co. v. Cline, 111 Ill. App. 416.
The foregoing cases, whether involving trespassing children or adults, or even licensees, seem to apply the rule strictly whether the trespass was committed in town or country, or in railroad yards, or elsewhere.
The following cases announce what, for want of a better term, may be called an intermediate rule as applicable to trespassers or licensees: Ala. G. S. Ry. Co. v. Guest, 144 Ala. 373, 39 South. 654; So. Pac. Ry. Co. v. Chatman, 124 Ga. 1026, 53 S. E. 692, 6 L. R. A. (N. S.) 283; Louisville & N. Ry. Co. v. Daniel (Ky.), 91 S. W. 691, 3 L. R. A. (N. S.) 1190; Green v. C. & W. M. Ry. Co., 110 Mich. 648, 68 N. W. 988; Clark v. M. C. Ry. Co., 113 Mich. 24, 71 N. W. 327, 67 Am. St. Rep. 442; Bouwmeester v. G. R. & I. Ry., 67 Mich. 87, 34 N. W. 414; Smalley v. Southern Ry. Co., 57 S. C. 243, 35 S. E. 489; Fearons v. K. C. El. Ry. Co., 180 Mo. 208, 79 S. W. 394; Chesapeake Ry. Co. v. Rogers,
In these cases it is held that if the accident occurs at a place where the company has permitted the public the free use of the tracks to pass along or over, and this use is open and continued for a long period of time and by a large or considerable number of people, or where the railroad runs through thickly populated portions of a city, town, or village where people frequently go upon or pass over the tracks for such a length of time that the employees of the railroad company may be charged with notice, or when such notice is directly given them, then in all such cases, although the injured person be a trespasser, still the railroad company, having reason to expect that some one may be on or near the track, must act accordingly, and keep a lookout and give timely warning in order to prevent a collision, and a failure to exercise ordinary care in keeping a lookout and in giving warning may be negligence for which even a trespasser is entitled to recover, provided he is not guilty of contributory negligence which is the' proximate cause of the injury. In cases of adults being at such place, the employees of a railroad company are not required to either check the speed of the train or to stop it as soon as they discover the intruder. All that is required of them in the first instance is to give timely warning of the approach of the train. On giving such warning they have the right to assume that the intruder will leave the track. In caso of children or infants, however, they may not indulge such a presumption, but must at once arrest the speed of the train as soon as they discover the children, or, by the exercise of ordi
“It becomes important, therefore, to distinguish between law and fact. So far as the defendant is concerned, negligence may be defined to be a failure to perform some act required by law, or doing the act in an improper manner. The law determines the duty; the evidence shows whether the duty was performed. What duty rested upon the defendant, was a question of law; was the duty properly performed? was a question of fact.”
The general rule recognized by all' courts, so far as we are aware, when not modified by statute, is that the railroad company, may, outside of cities and towns, assume and act upon the assumption that the track is free and clear, and that trespassers will not put themselves in. the way of trains. In other words, the railroad company need not anticipate that any one will commit a trespass at such a place. The mere fact that there are occasional trespassers does not change the rule. It may be that in certain cases, where a long-continued use is claimed by one side and denied by the other, the court must submit the question of user to the jury under proper in
The cases that hold that a lookout is required at all times and places, so far as we have been able to find them, are the following: Chicago, B. & Q. R. Co. v. Grablin, 38 Neb. 90, 56 N. W. 796, 57 N. W. 522; Troy v. Ry. Co., 99 N. C. 298, 6 S. E. 77, 6 Am. St. Rep. 521; Clark v. R. Co., 109 N. C. 430, 14 S. E. 43, 14 L. R. A. 749; Smith v. Norfolk & S. Ry. Co., 114 N. C. 729, 19 S. E. 863, 923, 25 L. R. A., 287; Bottoms v. Seaboard Ry. Co., 114 N. C. 699, 19 S. E. 730,
There are some other cases cited hy respondent as holding this rule namely, Keyser v. Chicago & G. T. Ry., 56 Mich. 559, 23 N. W. 311, 56 Am. Rep. 405, and Meeks v. S. P. Ry. Co., 56 Cal. 513, 38 Am. Rep. 67. But, as we have already shown hy the citations, the courts from which these cases emanate do not countenance such a rule as will appear by reference to the later decisions of those courts. The case in 56 Mich. 559, 23 N. W. 311, 56 Am. Rep. 405, however, is clearly distinguishable from the case at bar. In that case, from the engineer’s own testimony it was apparent that he could have stopped the train long before he struck the child, if he had made any reasonable effort to do so after discovering and recognizing the child on the track. It was, therefore, a case of gross negligence. The following cases are also sometimes cited by courts as recognizing this doctrine: Guenther v. St. L. & Iron M. Ry., 108 Mo. 18, 18 S. W. 846; Lynch v. St. Joe & I. Ry. Co., 111 Mo. 601, 19 S. W. 1114; Felch v. Concord Ry. Co., 66 N. H. 318, 29 Atl. 557.
It will be found, however, that these latter cases accept the doctrine announced in what we have termed the “intermediate rule.” The rule in Tennessee is founded upon a positive statute which requires a lookout to be kept by the railroad company at all places, and where an object is seen upon the track to at once give the required signals and slow up or stop the train. Under this statute it has been- held that the duty to keep a lookout is constant, and a failure to give the statutory signals by reason that a proper lookout was not kept constitutes negligence per se, of which a mere licensee, or even a trespasser, may avail himself in an action for negligence against the railroad company. Mr. Justice Lurton, who^ before his appointment to the federal bench, was a justice of the Supreme Court of Tennessee, however, points out in the case of Felton v. Aubrey that such is not the rule in the absence of a statute. This leaves the Nebraska, the North Caro
But is this doctrine sound? TJpon wbat principle of laAV or justice is it founded ? It is said tbat it is tbe duty of tbe railroad company at all times and places to keep a lookout for obstructions on tbe track, or for any interference therewith, for tbe safety of their passengers; tbat tbe company owes a duty to them, at least. Further, tbat railroad trains are dangerous instrumentalities, which at all times and places should be operated with reasonable care. All this may be conceded, and yet a trespasser may not be entitled to complain for an injury inflicted upon him. In the first place, tbe passenger stands in a special relation to tbe company; be is on its train by special invitation, and under a special contract which imposes tbe duty upon tbe company to carry him safely. This duty is constant and may not be relaxed. Supposing a tramp*were stealing a ride on a train which came into collision with another train, or with any other obstruction on tbe track, or by reason of a defective roadbed an accident occurs, could tbe tramp recover damages against tbe company because it bad not discharged its duty to tbe passengers on tbe train on which tbe tramp rode when be was injured ? If be may recover while trespassing on tbe track of tbe company for a failure to keep a lookout in tbe interest of tbe passenger, why may be not likewise recover as a trespasser on a train for like failure to perform a like duty to' tbe passenger ? Are not mutual rights, duties, and obligations always measured “by tbe relationship of tbe parties? Isn’t tbe right of way of tbe company private property and governed by.tbe laws relating to private ownership, except tbat it is dedicated to public use for transportation purposes ? Any person, therefore, who may desire to avail himself of tbe facilities provided by tbe company for transportation may- do so, and for tbat purpose may at all proper times and places claim access to its property devoted to tbat purpose as a matter of right, and in exercising such right be has a right to demand the
The trial court in this case, by its instructions, recognized the doctrine that a railroad company owes no duty to an adult trespasser upon its track until such trespasser is discovered, but an exception was made by the court with regard to infant trespassers. The overwhelming weight of authority, as we háve shown, recognizes no such distinction; and, in the absence of a statute, such a distinction finds no support either in reason or upon sound principles of justice and right. With respect to infant trespassers, there is a well-established exception in what is termed the “Turntable Cases.” This exception is, however, as we conceive, based upon sound reason and good logic, and we have attempted to define and apply it in the case of Brown v. Salt Lake City, 33 Utah 222, 93 Pac. 510, 14 L. R. A. (N. S.) 619. This exception, however, cannot be universally applied in favor of infant trespassers. Unless the conditions upon which the exception rests prevail, the exception cannot be applied. A railroad track in an open country neither attracts nor allures children. Moreover, railroad trains must be operated at considerable speed in order to meet the public demands. If such trains cannot be operated in the country districts at great speed and without having the trains constantly under the control of the operators, they cannot be so operated anywhere. If the operators of trains
But it is asserted by respondent’s counsel that the engineer says that he looked ahead of the engine and saw the track, and that he actually discovered an object on the track when the engine was still one hundred and twenty-five yards distant from such object; that there is evidence in the record that the train could have been stopped within a distance -of one hundred yards. From this it is argued that the engineer, after discovering the object on the trade, could have stopped the train before striking the child, and not having done so constituted negligence. It is true that the engineer, who was a witness testifying on behalf of respondent, in substance said that he looked down the track ahead of the engine for a considerable distance west of and on approaching the crossing; that he saw no person, cattle, sheep, or other animate objects at or near the crossing, but that in approaching it he did see an object on the track when he was about two hundred yards
“Now, as we have already seen, the only duty the engineer of a train owes to a trespasser is to avoid injuring him after his peril is discovered. And, in determining this question of duty, it is entirely immaterial whether the trespasser is sui juris or not, for the inquiry is not as to the-ability and capacity of the trespasser, hut rather the duty of the one who is charged with the negligent acts. For this reason the hetter-considered cases hold that it is entirely immaterial that the trespasser is an infant, idiot, or lunatic in determining whether he was a trespasser. (Citing cases.) When the duty once commences, no douht a higher degree of care is required to avoid injuring a child than, is required where the trespasser is an adult. But active duty commences no sooner in one case than in the other. The reason why one who hy his negligence contributes to his injury cannot recover is entirely different. . . . With these distinctions in mind, most of the cases cited can be reconciled, and from them the rule deduced that a railroad company owes no duty to a trespasser, be he sui juris or not, until its employees actually discover him upon the trach, and that the question as to the age of the child is not important in determining when the duty commences.”
The court then, proceeds to discuss the exception in favor of infants, namely, the Turntable Cases, and continues further:
“In the sixth instruction the-jury were told that defendant’s employees were not required to he upon the constant lookout to discover children at that place — the place of the accident. . . .*490 ■While it does not directly say that the engineer was required to lieep a lookout for trespassers, yet such meaning could well be placed upon the language used. The inference is quite strong that, while he was not required to keep a constant lookout, yet some effort in this direction was required. The case was presented to the jury on the theory that the child was a trespasser, pure and simple, and, as we have seen, the defendant did not owe it the duty to look out for it.”
In Smalley v. Ry. Co., 57 S. C., at page 255, 35 S. E., at page 492, the Supreme Court of South Carolina quotes and adopts the following language:
“Properly speaking, there is no positive duty owing from a railroad company to a trespasser on its track; it is not a part of its duty in exercising ordinary care in the operation of its road, to provide against the possibility that trespassers may be on its. track, and the extent of its duty is to refrain from willful or deliberate injury. Except at crossings, it has the right to the exclusive use of its track and premises, and is entitled to assume that they are clear. It is not bound to anticipate that persons will be upon them or to make provision for the safety of such persons.”
Of course, the rights and duties outlined in the foregoing statement should be limited strictly to places in the open country, and where the public or any considerable number of persons have not habitually resorted to the track with the express or implied permission of the company. In view of the whole evidence upon the question now under consideration, can reasonable men say that the engineer in fact did see the object on the track and know it was a child or living being sooner than he says he did ? It is urged that he says he looked, and from this it is argued that when others looked they saw, and discerned it was a child at a much greater distance, and hence he must have done the same. We repeat, the question is not what he might or ought to have seen, but it is, did he in fact see, and was the object upon the track which he was approaching, so prominent and in such a position that when he looked in the direction in which the child was he must have seen it and that from these facts'it is obvious that he is not stating the truth when he says, he did not see and discern its character sooner? If we may assume that the engineer told the truth when he said he did not seen the objeót on the track
It is, however, insisted that, in view of what the witnesses saw when they made the experiments, the jury had a right to disbelieve the engineer and assume that he saw the child in ample time to have stopped the train. This assumption is, however, based upon the fact that the engineer must have seen what others say they saw. Does this necessarily follow ? The engineer was approaching a crossing in the open country. In looting forward down the track, as he says, he was looking to see whether or not there were any objects at or near the track. Quite true, in doing this he also scanned the track ahead of the approaching engine; but it is obvious that he had the track less in mind than he did the crossing and the approaches thereto. His special duty was to observe the crossing. It is easy, therefore, to understand why one may look down a track and not see or observe every object that may be between the observer and the point the observer has specially in mind, and this is especially apparent where the intermediate object is small, like a two or three year old child lying prone upon the track. Prom this it is also easily understood why the experiments made by the respondent and his witnesses are of little, if any, probative force. In this connection appellant contends that those experiments were improperly admitted in evidence, because they were not made under substantially the same conditions in which the engineer was placed at the time. It is quite true that the experiments were not made under the same conditions in which the engineer was placed, and it would perhaps be impossible to make such experiments under precisely the same conditions. It seems to us, however, that the results of the experiments amounted to no more than both court and jury had a right to consider without any evidence upon the subject. The conditions and surrounding circumstances were all in evidence, and it therefore was a matter
Applying the undisputed facts established by the' evidence to the foregoing statement of the law, is there anything from which a jury may infer that the engineer actually saw the object upon the track and discerned it to be a child in time to avert the collision? It is argued that, as to whether the engineer saw the child or not is a question of fact to be submitted to and passed on by the jury. As an abstract proposition, where the only issue is whether a person saw or did not see an object, the questiop is one of fact and ordinarily must be submitted to the jury. But in every ease there must
For an intelligent discussion and approval of the propositions we have discussed above, and that no active duty’is owing to a trespasser until his peril is discovered, and for a review of the more recent cases upon this point, we refer to the recent case of Southern Pac. Ry. Co. v. Chatman, 124 Ga. 1026, 53 S. E. 692, 6 L. R. A. (N. S.) 283, also reported and annotated in 4 A. & E. Ann. Cas. 675. In the foregoing case the question as to whether the boy was a trespasser or not was not clear, but, notwithstanding this, the court held' that an instruction which imposed the duty upon the company, as the trial court imposed it in this case, constituted error. It is asserted, however, that Hyde v. U. P. Ry. Co., 7 Utah 356, 26 Pac. 979, is decisive of this case. We cannot agree with this contention. The facts in that case bring it clearly within what we have termed the intermediate rule, as is manifest from the instruction which was given in that case and which the territorial Supreme Court approved. The instruction, so far as material here, reads as follows:
“If they (the trainmen) saw an object and from the proximity of settlements, and the places where there were children, they ought, in the exercise of good judgment and sound discretion, to have known it was probably a human being; or, if approaching railroad crossings where there were houses and people residing, close by, they failed to keep such a lookout as they ought to have kept, and that they ought to have seen that child, and run upon it — then the plaintiff would have a right to recover in this case.”
The case of Young v. Clark, 16 Utah 42, 50 Pac. 832, already referred to, was a similar case, both as regards the facts and the law applicable thereto, as appears from the opinion in that case by the Supreme Court of this State.
With regard to the case of Keyser v. C. & G. T. Ry., 56 Mich. 559, 23 N. W. 311, 56 Am. Rep., 405, and Meeks v. S. P. Ry. Co., 56 Cal. 513, 38 Am. Rep. 61, it is sufficient to say that while some of the expressions used in those cases might be taken as favoring respondent’s contention in this -ease, yet the later rulings of the courts from both of those states, as appears from the cases cited by us, leave no room for doubt that, as to trespassers, the rule adopted by tiróse courts is as we have herein stated it to be. It is of no great importance, therefore, what the earlier cases may have held, in view of the fact that the later decisions of those courts are clearly in harmony with the great weight of authority.
From the best-reasoned cases, which, in our judgment, constitute the great weight of authority, we may safely state the following propositions as the settled law, in the absence of any countervailing statute: (1) A railroad company in country districts, except at crossings, owes no active duty to keep a lookout for trespassers who may intrude upon its track, and it need not anticipate their presence there. (2) That it
From the foregoing no other conclusion is permissible than that the court erred in giving instruction No. 11. Further, there is nothing in the conceded or undisputed facts, as this case .now stands, from which a jury might draw a legitimate
The judgment of the lower court is therefore reversed, and the cause is remanded for a new trial. Costs to appellant.
Concurrence in Part
(concurring in part, and dissenting in part).
I concur in a reversal of the judgment because of error in the charge. Prom the conclusion reached that the court erred in refusing to grant a nonsuit or to direct a verdict in favor of the defendant, I dissent.
I agree with the general rule that train operatives ordinarily owe no duty of lookout to discover trespassers on the track; that, when an adult trespasser is discovered, trainmen may assume that he will take care of himself and keep out of danger until a situation is disclosed which indicates that he is not aware of the danger threatening him; that, when a trespassing child of tender years is discovered, trainmen may not assume that it will take care of itself and keep out of danger,, but they are required to use care commensurate with the situation to avoid injuring it; that while trainmen are not usually required to foresee or anticipate the wrongful presence of persons upon or about the track, yet if they have knowledge that at certain times and places it has been the custom and general habit of persons, although technically trespassers, to traverse the track, or to' be about or upon it without objection, train operatives, in the exercise of ordinary care, may be required to take notice of such fact and to regulate their conduct accordingly. With the general statement of these principles, as made by klr. Justice Prick, and with much that he has said concerning them, I agree. I also agree
Every case of actionable negligence involves a legal duty to exercise care, and a. breach of that duty resulting in injury. Where there is no legal duty to exercise care there can of course be no actionable negligence. One may owe a legal duty to exercise care with respect to some persons, but as to others he may owe no such duty. A master owes a legal duty to his servant to use care in furnishing and maintaining suitable premises. He ordinarily owes no such duty to a mere stranger, or to a trespasser. A railroad company, as á matter of law, owes a duty to those rightfully upon its cars and about its track and premises to use care in the handling of its cars and in the running of its trains, but it, as a general rule, owes no such duty to a mere trespasser. The questions whether a legal duty to use care is owing and the degree of care, whether ordinary care or a high degree of care, are questions of law to be determined by the court. When the standard of care is fixed, as when specific duties are prescribed by statute or ordinance, then, a failure to come up to such standard, or to perform the duties so prescribed, is generally held to be negligence per se. When, however, the standard is not fixed, nor
I, however, do not concur in the holding that the court erred in refusing to grant a nonsuit or to direct a verdict. Assuming that the facts do not warrant a holding that a duty to use care was owing from the train operatives to observe a reasonable lookout to discover the presence of persons on the track at the place in question, and that no duty to use care on their part arose until they discovered the child, the question of law to be determined by us is, is there any evidence to justify a finding by the jury that the train operatives discovered the child, and that they, after such discovery, in the exercise of all reasonable care commensurate with the situation, could have avoided injuring it ? The point on which we principally disagree is, when does the duty to exercise care arise ? Is it from the time the object is seen and discovered on the track by the train operatives, and by looking along the track it could be discerned to be a human being, or from its appearance and surrounding conditions the train operatives ought reasonably to have expected that the object discovered by them may probably be a human being, or is it from the time the train operatives themselves say that they recognized or discerned the object to be a human being ? The evidence bearing upon the question shows that the track ran in an easterly and westerly direction. The child was lying between the rails of the track about two hundred and twenty-five feet yvest of a highway crossing. The train was running in an easterly direction at a rate of speed of from thirty-five to forty miles an hour. The engineer operating the train testified on behalf of planitiff that under the rules of the company, in approaching crossings, he was required to observe a lookout for the presence of persons who might be at or about them; that when he approached the whistling post, which was about one-half mile west of the crossing, he looked along the track in advance of the engine and in the direction of the crossing; that the coun- -
An engineer discovering an object on the track may not assume, as matter of law, that it is inanimate and of no consequence, and regulate his conduct accordingly. Whether he may do so, I thipk, ordinarily depends upon the character and appearance of the object and the facts and circumstances of the case. Upon this question, I think, the authorities are generally of one accord. In this connection it is said that the case of Hyde v. U. P. Ry. Co., 7 Utah 356, 26 Pac. 979, is not applicable. I think the purport of the decision and the points before the court for review in that case have been misconceived. In the opinion of the majority of the court a quotation is set forth of a portion of the charge relating, not to the defendant’s duty nor its negligence, but to the negligence of the parents and the child, which the reporter inserted in the report preceding the opinion. The charge is nowhere referred to by the court, either in the state of the case or in its opinion. The following statement made by'the court in its opinion clearly shows that the charge of the court with respect to the negligence of the defendant or its duties, or even with respect to the negligence of the parents or the child, was not before the court for review:
“The questions of the negligence of the parents and of the railroad company were submitted to the jury under proper instructions by the court, to which no objection is taken, and we see no reason for disturbing their verdict on the ground that it is not supported by the evidence.”
“But, even if tlie parents were guilty of contributory negligence, we think, under the circumstances of this case, such negligence should not defeat a recovery. Although an injured party may he guilty of negligence contributing to the inj.ury complained of, yet he is entitled to recover against a defendant who, after discovering the plaintiff’s negligence, fails to use due diligence to prevent accident, but who goes ahead wantonly or recklessly and commits injury.”
In that ease, “both the engineer and the fireman testified that they saw the child when it was from two hundred to three hundred yards away, but thought it was a piece of cloth or paper, and could not tell what it was until they got within about thirty feet of where it lay, when they discovered it was a child by seeing its hair, but that it was then too late to stop tho train before reaching it. They further testified that they did not slacken the speed of the train when they saw the object on the track until they ascertained it was a child, when they immediately did all they could to stop the train as soon as possible, but that the train could not be stopped in a less distance than about one hundred and twenty-five feet.” True, it was also shown that “there was a store close by, and a schoolhouse not far off, and children were frequently on and along’ the track at this point.” .But the ruling of the court in that case is not predicated on the assumption that there were facts showing that the track at such place had been traversed or had been used by people of the neighborhood or by the public, or that persons otherwise had been about the premises under circumstances where it may be said that the railroad company acquiesced in such use being made of the premises, and for that reason the train operatives were required to take notice of'such fact, and-for that or other reasons to observe a look
If the conclusion reached by my Brethren is correct, that the charge of the trial court in that case was before the Supreme Court for review, and that it pertained to questions with respect to the defendant’s duties and negligence in the premises, and is susceptible to the meaning ascribed to it by them then the case is an authority not only justifying the submission of this case to the jury, but also sustaining the charge of the court here reviewed by us. The language quoted by my Brethren, much less the language not quoted, does not bring the case within the rule which is termed the “intermediate rule.” The language does not imply the meaning that if the jury found that the track at the place in question had been frequented by children, or that they or other persons had been accustomed to traverse it or be about the same, or because of the assumption of any such facts by the court, a
Again, it is said that the case of Keyser v. C. & G. T. Ry. Co., 56 Mich. 559, 23 N. W. 311, 56 Am. Rep. 405, is distinguishable from the case here on the ground of gross negligence. I do not think that Mr. Justice Sherwood, who wrote the opinion, ruled the case on any such ground. The syllabus of the case on this point is:
“It is negligence not to slacken the speed of a train so that it can be stopped if necessary, if the engineer has seen an object on the track, a long way off, and cannot' tell what it is.”
“That the country at the place and in the vicinity of where the accident occurred was somewhat low and wet, and grown up to brush and berry bushes, and, though sparsely Nsettled, was occasionally visited by persons in the vicinity, and others who gathered berries. There were two road crossings within three-quarters of a mile of where the plaintiff was struck by the train. The engineer of the train was sworn on behalf of defendant, and gave evidence tending to show that the train was running at the rate of thirty or thirty-five miles per hour; that with the number of cars composing the train it could not be stopped at a less distance than from four to five hundred feet; that when he first saw the plaintiff upon the track his engine was from three thousand feet to two thousand fiv,e hundred feet from it, and he resembled a stick of wood lying upon the track; that he was lying down; that when he first discovered that it was a child which he saw his engine was about one thousand two hundred feet from the plaintiff.”
The trial court in that case charged in substance that'there was nothing in the evidence warranting the assumption that the train operatives were required to keep a vigilant lookout in the locality in question, and further charged: “The only question that is left for- you to consider and determine is whether the engineer and fireman in charge of the engine that struck the child, after they discovered him and realized the fact that he was of that age that he was possibly helpless to take care of himself and get off from the track, did all that an ordinarily prudent and careful engineer and fireman should have done under the circumstances, warning the child of his danger and stopping the train, and thereby avoid, if possible, killing or injuring him.” A verdict was obtained in favor of tbe defendant, from which tbe plaintiff prosecuted an ■ appeal. In reviewing tbe charge and in reversing the judgment, the court said:
“It is apparent from tbe record that sometbing made its appearance upon tbe track, indicating danger a long way ahead of tbe train, and evidently in a locality where it would least be expected. It was discovered by both the engineer and tbe fireman. The occurrence was of a character to call for increased vigilance on the part of tbe defendant’s trainmen in determining tbe char*514 acter of the apparent obstruction. It should have, at least, caused the engineer to slow down the speed of his engine to such a rate' that, in approaching it, he could have stopped his train, if necessary, to prevent injury before reaching the object of danger.”
It was further said:
“Under all the circumstances stated in the record, I do not think thát such a lookout as was called for by the appearance of the child upon the track was observed by the trainmen.”
From a reading of the case it is very clear to me that the ruling, so far as it involved the point in question, was based on error committed by the trial court in submitting to the jury only the question for determination whether the trainmen did all that ordinary prudence and care required after they discovered that the object was a child, instead of also leaving to them the question for determination whether they did all that ordinary care and prudence required after they discovered the object on the track. This view is strongly enforced by what the court said on a subsequent appeal of the same case (66 Mich. 390, 33 N. W. 867), where it was said by the court that when an object is discovered on the track,, and its character is unknown to, the engineer,
“Ordinary care and prudence for safety of human life require that he should reduce the speed of his train to such an extent that he can stop, if necessary, before reaching it, and not take the chances of probability that the object discovered is not a human being because not expected upon the track at that point.”
So, in the case of Meeks v. S. P. R. R. Co., 56 Cal. 513,, 38 Am. Rep. 67, where there was testimony tending to show that at the place of injury, and for a considerable distance beyond, the road of the defendant was practically straight and free from weeds and other like obstructions; that the day was clear, and that at the time of the injury the plaintiff (a child between sis and seven years of age lying on the track) could have been seen and recognized as an object on the track at a distance of from three hundred to three hundred and fifty yards; that one of the trainmen on the engine testified that he saw the plaintiff at a distance of four hundred to five hundred feet ahead, but supposed it was a bunch of leaves or weeds, or
My conclusion, therefore, is that when train operatives discover an object on the track, whether, under all the circumstances, they may act upon the assumption that it is some inanimate thing, or whether they ought to anticipate that it may probably be a human being, is ordinarily a question of fact. Although no duty in the first instance be imposed to discover the presence of persons at a place, yet, if the jury should find from what the trainmen saw ,and discovered, and from all the facts and circumstances surrounding them, they ought to have anticipated that the object discovered might probably be a human being lying prone upon the track, or a child of tender years- in a place of danger, a duty to exercise care would arise, which, if performed negligently, resulting in injury, would constitute actionable negligence.
It, however, is intimated that, the rule announced in these eases has been departed from by subsequent cases from the same courts. This claim is based upon the statement made in subsequent cases that no duty of care was imposed on train operatives to observe a lookout to discover trespassers. That same principle is recognized in Keyser v. Ry. Co., supra, and in Meeks v. Ry. Co., supra. No contrary doctrine is announced in these cases. But the doctrine is there announced that when train operatives discover an object on the track, under circumstances from which they may or ought reasonably to expect the object discovered may be a human being, a duty to exercise care and vigilance arises. This doctrine is not disputed by subsequent cases from the same courts, nor is it repudiated, but, I think, supported by the weight of authority.
Special reference is made to the case of So. Ry. Co. v. Chatman, 124 Ga. 126, 53 S. E. 692, 6 L. R. A. (N. S.) 283, and notes to cases in 4 A. & E. Ann. Cas. 615. But these
From the testimony of the engineer that he looked along the track in the direction of the crossing from the time he left the whistling post, that he saw the object before he saw the crossing, that from the time he discovered the object on the track one hundred and twenty-five yards away he looked at it and tire crossing until the child was struck, and from all the evidence in the case tending to show at what distance such an object could plainly be seen and recognized by looking at it, a finding might properly be made that the engineer discovered and discerned the object at a greater distance than that testified to by him. The jury were authorized not to assume as matter of law that the engineer saw what might be seen had he looked, but to draw the inference as matter of fact that he, in looking, saw what others saw in looking under similar conditions. There is testimony tending to show that from his position on the engine he was able to better see and discern an object on the track than persons standing on the track looking in the direction of the object at the same distance. There
TJpon the record, I think the evidence sufficient to send the case to the jury upon proper instructions.