183 Iowa 601 | Iowa | 1918
Eliminating from present consideration the alleged license; the absence of warning by bell, whistle, or other signal; that no watchman was present to drive the child from beneath the cars; and the claim that the backing against the standing cars was at excessive speed; and some other claims of appellant, — and we have the case of a six-year-old boy who was hurt while crawling under a freight car that was blocking his way across the track. To be sure, the petition adds the highly material claim that the employees of defendant saw him while venturing on this perilous undertaking. But there is no evidence to support the claim.
If the aforesaid eliminations are made, it will not meet the necessities of plaintiff’s case if the evidence sustained the claim that, had reasonable diligence been used, the boy might have been seen in time to save him from injury. With said matters eliminated, defendant owed the boy no duty save to avoid injuring him wantonly, — to save him from injury if his attempt to go under the car was seen in time to save him. It is the settled law, as to infants as well-as adults, that, if one is injured by going under cars which may be moved at any time, he must be dealt with as a trespasser. Thomas v. Chicago, M. & St. P. R. Co., 93 Iowa 248, 253; same case, 103 Iowa 657; same case, 114 Iowa 169, 173. The only duty owing such a trespasser is to refrain from wilfully injuring him after his peril is perceived, if there then be time to avoid his injury. From the vast number of cases supporting this proposition, we select a few. See Thomas v. Chicago, M. & St. P. R. Co., 93 Iowa 248, at 252; Bourrett v. Chicago, M. & St. P. R. Co., 152 Iowa 579, 582; Gregory v. Wabash R. Co., 126 Iowa 230; Chrystal v.
“But the plaintiff contends that the hoy might and should have been discovered sooner. It seems not improbable' that he might have been discovered a little sooner, but no locomotive engineer is bound to watch out for trespassers upon the track. The company does not owe trespassers that kind of care,” — and that this has been settled by repeated adjudications, citing them.
An infant may not recover unless the negligence of the owner was wanton, or evinced an indifference to the plaintiff’s safety after his position of peril is discovered. Gwynn v. Duffield, 66 Iowa 708, 713. In some way, it must-, appear there was actual knowledge, not merely that there was means of knowledge. Dale v. Colfax Cons. Coal Co., 131 Iowa 67. It is not enough to show the trespasser ought to have been seen. It must appear he actually was seen, and that his peril was appreciated long enough before the accident to- have enabled the defendant to avoid injuring him. Purcell v. Chicago & N. W. R. Co., 117 Iowa 667; Earl v. Chicago, R. I. & P. R. Co., 109 Iowa 14.
Since no duty to the trespasser arises until he is actually seen, it. follows of necessity no care is due him before his peril is known. On that theory, the general rule has been worked out that an owner of property trespassed upon is not liable for an injury resulting from the trespass merely because care might have successfully guarded against such injury. Hounsell v. Smyth, 7 C. B. (N. 3.) 731; Hargreaves v. Deacon, 25 Mich. 1; Gavin v. City of Chicago, 97 Ill. 66, 68; Bishop v. Union R. Co., 14 R. I. 314, at 318. Therefore, we held in Thomas v. Chicago, M. & St. P. R. Co., 93 Iowa 248, at 252, that the company is not required to keep a lookout for trespassers. It was said in Bishop v. Union R. Co., 14 R. I. 314, at 318, that one is not bound to
It follows that there was here no duty to give warning that the cars were about to be moved. Brackett v. Louisville & N. R. Co., (Ky.) 111 S. W. 710; Schmidt v. Pennsylvania R. Co., 181 Fed. 83; Pennsylvania R. Co. v. Martin, (C. C. A.) 111 Fed. 586. As to adults who attempt to go under cars, and the like, it is the rule that there is no duty to signal by bell, whistle, or to give warning in any other way. ' See Smith v. C., R. I. & P. R. Co., 55 Iowa 33; 3 Elliott on Railroads (2d Ed.), Section 1169; Gulf, C. & S. F.
There is dispute as to which of the parties has the burden of proof on whether inspection was made. What we have already said settles that this is an immaterial dispute, because the company was under no duty to make an inspection. We have to add to what has been said that the duty to look out does not exist as to looking under cars or into openings between cars. See Hebard v. Mabie, 98 Ill. App. 543; Peters v. Bowman, 115 Cal. 345 (47 Pac. 598, at 599); Garner v. Trumbull, (C. C. A.) 94 Fed. 321; Teakle v. San Pedro, L. A. & S. L. R. Co., 32 Utah 276 (90 Pac. 402).
1-a.
We now reach whether any matters thus far eliminated from consideration make for plaintiff a case for a jury.
To be sure, it is alleged that, when the boy was attempting to crawl under the empty car, he stopped to play with an air brake apparatus attached to the same. Now, it is confessed that the record does not disclose what the boy was doing at the time when he was injured, or whether he was playing with the air brake; that there was an attempt to show by him just what he was doing when hurt; but that his testimony was excluded because of his incompetency as a witness. In addition, the petition excludes attraction by the apparatus by declaring that the purpose of going under the car was to get home.
1-b
But we may assume there was sufficient evidence to justify a jury in finding that children had for years played around and in cars, and congregated, loitered, and played in the yards, to pick up coal around cars; that they were in the habit of dumping hoppers on cars, and then picking up the dropped coal; that they picked coal found on the side of th.e cars and took it home; that for years coal has,
■ Standing alone, these past practices amount to a course of long-permitted use which does not include going under cars. It is doubtful whether the knowledge that such practices had been indulged in could, under any circumstances, constitute either a license or an invitation to go under cars at a future time. In effect, Central R. Co. v. Rylee, 87 Ga. 491 (13 S. E. 584), holds there can be no license to indulge in such a dangerous joint use of the track. Be that as it may, it is clearly settled that these past practices constituted no such license, and gave no invitation for the boy to go under the car. The most that has been said for the side of the plaintiff is an implication in Morrissey v. Eastern R. Co., 126 Mass. 377; that either inducement or implied invitation may suffice as to an infant who is using the track as a playground. Be that as it may, these past practices constituted neither inducement nor implied invitation to crawl under the car for the purpose of reaching home. That an opening is made by the cars and used by employees, arid that plaintiff himself has used it, constitutes no sufficient invitation to go into such opening. Furey v. New York Cent. & H. R. R. Co., 67 N. J. L. 270 (51 Atl. 505). In effect, it is held in Elie v. Lewiston, A. & W. S. R.
Since a c|iild of tender years cannot be charged with contributory negligence, there is but one way to explain the very large number of cases wherein such children have been held to be within the rule as to care due trespassers. Such cases must have proceeded on the theory that the question was not whether the injured child was negligent, but whether the injurer was; that the inquiry is not directed to whether the child contributed to negligence, but whether there was any negligence to contribute to. There is some language in Thomas v. Chicago, M. & St. P. R. Co., 93 Iowa 248, 255, which, in relieving from liability, assumes, in a 'way, that a negligent■ injurer is being relieved. But the real decision is that a trespasser cannot recover for injury inflicted, because the injurer “owes the trespasser no duty, and is not required to be on the lookout for him.” The essence of the Thomas case is found in the statement that, on the question whether one shall be treated as a trespasser, “the better considered cases hold that it is entirely immaterial that the trespasser is an infant, idiot, or lunatic.” To the same effect is Brown v. Rockwell City Canning Co., 132 Iowa 631, 638. In the large number of decisions that dispense with all care until it is known that the trespasser is in peril, none proceed on the reasoning .that the life and limb of the trespasser is of no value and entitled to no protection. That is proven by the fact that every care is held ■to be due him when it is once known he exists. And the reasoning underlying the dispensation from duty to care is wholly that no one is negligent for not anticipating or assuming that a trespass is being constantly committed.
The acid test is whether anything found in this record suggested to a reasonably careful and prudent person that a little boy, in an attempt to reach his home, was under this coal car when the defendant backed down upon this car. We think there was no duty to anticipate the presence of the child, and that, therefore, the direction of the verdict for the defendant must be affirmed.
This makes it unnecessary to pass on the question whether the father of the plaintiff was chargeable with contributory negligence, as matter of law. — Affirmed.