13 Wash. 525 | Wash. | 1896
Lead Opinion
The opinion of the court was delivered by
The defendant is a railway terminal company in the city of Spokane. Its railway tracks and yards lie parallel with the Spokane river near its north bank in that city. North of the defendant company’s yards and tracks there is an addition to Spokane
On the 12th day of April, 1892. the plaintiff and respondent, Albert John Roth, a boy of nine years of age, while going down through this path on the right-of-way of appellant, was knocked down by a car, the wheels of which passed over one of his legs, crushing it so that amputation of that limb became necessary. It seems that the appellant’s agents in switching the cars sometimes, when help was short, instead of sending an engine down with the empty car, would, in railroad parlance, “kick” the car and let it go down the track unattended by a brakeman; that it was not the usual way to send the cars unattended by a brakeman, but that they sometimes did so, and it is conceded that that was the manner of switching the cars at the time of this accident. It seems that, at the same time that the respondent, who wras in company with his sister, and another boy about his own age, came down the path, two cars were “kicked” down
The overwhelming weight of testimony is to the effect that for three or four .years immediately preceding this accident, it had been the custom of the people north of the track, and of others, to use this right of way as a foot- path; that from fifty to one hundred people passed over it daily; that this custom was known to the appellant; that it made no objection to it, and that it posted no notices warning people not to travel upon the path. There was some little testimony offered in defense to the effect that people had been told not to go through there, but this was a question of fact which was submitted to the jury, and un
A number of cases are cited by the appellant to sustain the contention that, notwithstanding the fact that a railroad company acquiesces in such travel by the public, and does not take any steps to stop them, no implied consent to such use is established, and that such acquiescence does not vary the company’s duties as to trespassers; and it may he conceded at the outset that a railroad company does not owe any duty to
We have carefully examined the cases cited by the appellant and a majority of them we think can be easily distinguished from the case at bar.
The case of Chenery v. Fitchburg R. R. Co., 160 Mass. 211 (35 N. E. 554), was an action for running down the plaintiff at a point on defendant’s track where it was crossed by a private way along which she was traveling. The court instructed the jury that as a matter of law, if people were accustomed to cross a railroad track at a certain place, and the company made no objection, license from the company was implied, and that such a license imposed a duty to use reasonable care to protect the crossers; and the court in that case simply held that this was a question of fact for the jury to determine.
The Louisville, etc., Ry. Co. v. Phillips, 112 Ind. 59 (13 N. E. 132, 2 Am. St. Rep. 155), was a case where a track was laid upon a public street, and the court held that the rights of the public and the railroad company respecting the use thereof were mutual, though those of the latter were paramount; that a person was not a trespasser who walked along such track, and if .in so doing his foot became fastened in an opening which existed by reason of the negligent construction of the track, and he was run upon by a train of the railroad company which was. negligently managed, he being without fault, the railroad company was liable for the injury sustained. This was what was decided in this case, though the court indulged in a general discussion of the subject involved in the present case, and said that on the hypothesis that the place where the person received his injury was exclusively the roadway
In Mo. Pac. Ry. Co. v. Brown, (Tex.) 18 S. W. 670, the court held that evidence that a person had been in the habit of traveling on a track, and that the engineer had seen persons on that part of the track, but no more frequently than on other parts of the track similarly situated, and that no measures had been taken to prevent such use of the track, was not sufficient to establish a license to the public to use the track. In that case' the locality was remote from any station, and the court especially announced in its decision this fact and the further fact that there was nothing in the facts of the case to show that the company assented to or knew of the use of the track by others, and that the facts of that particular case were not sufficient to establish an implied consent to the use of the track on which a license could be assumed to have existed, and the further fact that there was nothing in the testimony to show any acts of negligence on the part of the appellants, but on the contrary that it showed an entire absence of negligence; a different case from the one under discussion, where the track was in a thickly settled locality, and where a uniform travel by the public had been established for a period of from three to four years. Persons are seen not infrequently by engineers traveling.on tracks in country places and in districts where frequent travel is necessarily impossible, and of course the
Cent. R. Co. v. Brinson, 10 Ga. 207, seems to be a mis-citation as the case is not reported in that volume.
Gaynor v. Old Colony, etc., Ry. Co., 100 Mass. 208 (97 Am. Dec. 96), simply decides that this is a question for the decision of the jury.
In the case of Philadelphia & Reading R. R. Co. v. Hummell, 44 Pa. St. 375 (84 Am. Dec. 457), there is no question of license or acquiesence discussed. The court held, in rather rabid language, that there was an intrusion upon the rights of the railway company; that the company had no reason to suppose that either man, woman or child might be upon the railroad where the accident happened; that it had a right to presume that no one would be upon it, and to act upon the presumption. The main contention there was that the company did not blow the whistle of the locomotive; the court held that they .were not bound under the circumstances of that case to do so. But this case is mentioned and distinguished by other subsequent cases in Pennsylvania, which hold that a license could be established by acquiescence.
Davis v. Central Cong. Society, 129 Mass. 367 (37 Am. Rep. 368), was a case where a woman had been invited to attend a meeting held at a house of worship and was injured by reason of the dangerous condition of the society’s premises, and the court held that whether the plaintiff was in the exercise of due care or whether the way was reasonably safe, were questions of fact for the jury. The case in no way bears upon the case under discussion.
Benson v. Baltimore Traction Co., 77 Md. 535 (26 Atl.
Plummer v. Dill, 156 Mass. 426 (31 N. E. 128, 32 Am. St. Rep. 463), decided that where a woman went to a building for her own convenience to inquire about a matter which concerned herself alone, she could not recover from the owner of the building for injuries received by striking her head upon a projecting sign placed on a post at the corner of the landing. This case seems to us clearly not to be in point.
Gibson v. Leonard, 143 Ill. 182 (32 N. E. 182, 36 Am. St. Rep. 376), was a case where the members of a fire patrol forced open the door of a building then on fire and entered the main floor and basement, and while
“There is nothing in the case to indicate an invitation, either express or implied, to either enter the premises or use the elevator, and there being no invitation or inducement on the part of the appellee, no duty was imposed upon him to leave the elevator in such condition, when the building was closed at night, as that it could be operated with safety.”
It would seem that it would he stretching the law to hold that the owner of a building would reasonably contemplate an emergency such as the burning of the house, and that by reason of the contemplation of such emergency, he should be held to have invited the patrolmen to use a dangerous appliance.
• The case of Baltimore & O. R. R. Co. v. Schwindling, 101 Pa. St. 258 (47 Am. Rep. 706), involves no question of license.
The case of Wright v. Boston, etc., R. R. Co., 142 Mass. 296 (7 N. E. 866), may tend to support the contention of the appellant, though it does not very clearly appear from the opinion what the real circumstances of the case were, or what the court would have held under the circumstances of this case.
The case of Illinois Central R. R. Co. v. Godfrey, 71 Ill. 500 (22 Am. Rep. 112), seems to decide squarely in favor of the appellant’s contention that the simple acquiescence of a railroad company in the use of its track or right of way, by persons passing along it, as a foot way, does not give such person a right of way
Probably the strongest case supporting the views contended for by the appellant is the case of Glass v. Memphis & C. R. R. Co., 94 Ala. 581 (10 South. 215), where it was held that the fact that persons living in the neighborhood of a railroad track are accustomed to walk upon the track without objection of the company does not make them any the less trespassers; that where such track is used without the direct consent of the company, the company could be held only
Conceding for the moment the doctrine that the plaintiff in this case was a trespasser, and conceding further that the defendant could be held only for gross negligence, we think the circumstances of this case did most emphatically indicate gross negligence, and we are of the opinion that under the circumstances of the case the defendant ought to be held to have presumed that when it threw a car out- of its sight around a curve on .a down grade in a thickly settled community where it had knowledge that -its track was used by from fifty to a hundred people a day, somebody's life would be imperiled by this careless mode of switching its cars; and that it carelessly and wantonly placed itself in a position where it could not see the peril of the passers by. The evidence shows that it was not its general custom to switch-its cars in this way, but that it did so only occasionally when short of men. The rule as laid down by many writers is that such a duty is imposed upon a railroad company in operating its trains as would be imposed upon an honest man in the transaction of his business. It seems to us that no honest or humane person would be guilty of transacting his business in the reckless
Very much more in accordance with the plainest principles of humanity was the doctrine announced in Railroad Co. v Donovan, 84 Ala. 141 (4 South. 142), viz., that those who are operating a railroad in a town or city, or through a thickly populated district where there is occasion for people to pass along the track, and a usage to that effect, owe the duty of keeping a vigilant lookout for such persons at such places. See also Glass v. Memphis & C. R. R. Co., supra.
The two Illinois cases which we have just noticed seem to have lost sight of the doctrine of comparative negligence, which was announced by the supreme
“ In such places,” says the court, “ they must use more effort and precaution for the preservation of life and limb than at places where persons have no right*539 to be, and the employees have no right to expect to find them. Whilst the great commercial and business interests ofnthe country demand their protection, still the lives and personal safety of persons are paramount. All other considerations must yield to this, the first and greatest and most important of all rights for which governments are organized and laws enacted.”
The court does not stop with the announcement that they must use more effort for the preservation of life and limb at such places than at places where persons have no right to be, but coupled with that is the further provision that they must use more precaution than at places where they have no right to expect to find persons. In the case at bar they did have a right to expect to find people on this track where these two insensate objects were sent without control, notwithstanding the fact that people had no legal right to be there.
In opposition to the doctrine announced by these few cases, however, we cite first the case of Kay v. Pennsylvania R. R. Co., 65 Pa. St. 269 (3 Am. Rep. 628), where it was held directly that the company had the right to detach cars and send them on without a brakesman, out of sight around a curve; but that this would be different'when, by license to others and by sufferance, they permitted the public to enjoy a privilege of passage which would bring them into danger. It is true that in this case certain privileges were granted over the right of way to certain persons, for the purpose of unloading and shipping lumber, but this privilege was not granted to the plaintiff nor to the public in general, and cannot affect the principles announced in the decision. This was a case where a woman carried her nineteen months’ old child with her to where she went to wash, near the railroad track. Af ter having crossed over the track to get some water,
..“Conceding the right of the railroad company,” said the court, “ to the exclusive use of its tracks over the lot, . . . the true question is whether the circumstances created a different duty. The ownership of the lot gave to the company the right to use it as most convenient and expedient in moving its cars; and no one can gainsay the right to detach and send cars ahead without a brakesman, even out of sight and around a curve. But the case is altered when, by a license to others, they have devoted this ownership to a use involving their interests and their safety; and by sufferance permitted the public to enjoy a privilege of passage which might bring their persons into danger.”
' The court then, after noticing the fact that the way was used to unload lumber, proceeds to say:
■ “It also suffered its tracks to be used by the neighboring population as a way across the lot from one part of the city to another. . . ■ . The presumption of a clear track at this place could not reasonably arise, . . . but greater precaution against injury to those thus permitted to use the lot and the tracks of the company became a duty.” •
And in speaking of the negligence in sending the car round the curve where people were liable to pass, the court said:
“ Its only purpose was to save a few hundred feet of travel to the engine, by detaching it from the car when in motion, and stopping the engine before it reached the switch, in order to permit it to run forward on the*541 main track to hitch on to other cars. To save this short time and distance a life was periled and a serious injury inflicted.”
And the court, as we have before indicated, in reviewing the instructions of the court below who relied upon the cases of Phil. & Reading R. R. Co. v. Hummell, and Gillis v. Pa. R. R. Co., supra, distinguished those cases from the case then under consideration, and found that the trial court had erred in applying the principles enunciated in those cases to the case at bar; and in quoting from the language of the court in the Hummell case this expression, “ precaution is a duty only so far as there is reason for apprehension,” says that that is the very feature which distinguished that case from the case under discussion. So, in this case, accepting that maxim, that “precaution is a duty only so far as there is reason for apprehension,” and applying it to the circumstances of this case, it must be convincing to the mind of every reasonable person that there was reason for apprehension that a car, thrown around this curve unattended, under the circumstances of the travel proven, would do incalculable damage to some traveler.
Hooker v. Chicago, etc., R. R. Co., 41 Am. & Eng. R. Cas. 498 (44 N. W. 1085), was a case where a womán was walking across a high trestle, accompanied by two children. It was conceded that she was not there in. the interest or for the benefit of the railroad company, hut that she was there simply for the purpose of amusing and eritertáining the children, and that they had to walk across this bridge or trestle on ties. While on the bridge they were overtaken by a passing train and were all killed. The testimony tended to prove that the bridge for many years and up to the time of the accident had been habitually and constantly used
In Swift v. Staten Is. R. T. R. Co., 45 Am. & Eng. R. Cas. 180 (25 N. E. 378), a New York case, it was held that the acquiescence of a railroad company in the habit of certain persons crossing its track at a place not a public highway, amounts to a license, and imposes a duty upon the company as to all persons so crossing to exercise reasonable care in the running of its trains so as to protect them from injury; that the sufficiency of the warning required at such crossings is a question for the jury. The court, in the course of its opinion, says:
“The legal principles applicable to the facts appearing here have been frequently enunciated by this court to the effect that where the public have, for a long time, ‘notoriously and constantly, been in the habit of crossing a railroad at a point not in a traveled public highway, with the acquiescence of the railroad company, such acquiescence amounts to a license, and imposes a duty upon the company, as to all persons so crossing, to exercise reasonable care in the running of its trains, so as to protect them from injury.”
It will be noticed that in these last two cases there is no question of any affirmative action on the part of the companies in granting licenses to people to travel on their tracks, but the decisions were based squarely upon the doctrine of acquiescence.
“We think that, upon a careful examination of the cases cited by counsel for the appellant, it will be found that in the most of them the injury was the result of the contributory negligence of the party injured, proximately causing it, and not resulting directly from the negligence of the defendant; and where they have gone beyond this, they are not in accord with the rulings of this court, nor in harmony with the current of authority; ” citing Byrne v. R. R., 104 N. Y. 362 (58 Am. Rep. 512), where it was said: “.That when the public for a series of years had been in the habit of crossing the railroad, the acquiescence of the defendant in the public use amounted to a license or permission to cross at the point, and imposed the duty upon it, as to all persons so crossing to exercise reasonable care in the movement of its trains, so as to protect them from injury.”
To the same effect are: Kelly v. So. Minn. Ry. Co., 28 Minn. 98 (5 N. W. 588); Barry v. N. Y. Cen., etc., R. R. Co., 92 N. Y. 289 (44 Am. Rep. 377); Phil. & Reading R. R. Co. v. Troutman, 6 Am. & Eng. R. Cas. 117; Taylor v. Delaware, etc., Canal Co. 113 Pa. St. 162 (8 Atl. 43, 57 Am. Rep. 446).
In the last mentioned case, the court quoting from Barry v. Railroad Co., 92 N. Y. 289 (44 Am. Rep. 377), said:
“ The company had a lawful right to use the tracks for its business, and could have withdrawn its per
See, also: Delaney v. M. & St. P. Ry. Co., 33 Wis. 67; Davis v. C. & N. W. Ry. Co., 58 Wis. 646 (17 N. W. 406, 46 Am. Rep. 667); Townley v. C. M. & St. P. Ry. Co., 53 Wis. 626 (11 N. W. 55); Barry v. N. Y., etc., R. R. Co., supra.
In fact, the overwhelming weight of authority seems to be to the effect that acquiescence creates a right which imposes upon the railroad companies the duty of ordinary diligence; and as the instructions of the court on this proposition were all based upon this theory, and the objections to such instructions were based upon the opposite theory, it is hot necessary to specifically review them. It is sufficient to say that we think the instructions were given in accordance with the great weight of authority.
And the instruction in regard to contributory negligence we think was also properly given.' By the overwhelming weight of authority a distinction is made between the responsibility of a child and that of an adult. It seems to us that it wrould be a monstrous doctrine to hold that a child of inexperience — and experience can come only with years-—-should be held to the same degree of care in avoiding danger as a person of mature years and accumulated experience. In the simplest transactions of life we recognize this
In the case of Mowery v. Central City Ry. Co. 51 N. Y. 666, the court said:
“The old, the lame, the infirm or the young are entitled to have their condition and ability, mental and physical, considered in diminution of the degree of care exacted of them.”
The rule is, however, laid down by Shearman & Redfield on the Law of Negligence, §73, as follows:
“ It is now settled by the overwhelming weight of authority that a child is held, so far as he is personally concerned, only to the exercise of such degree of care and discretion as is reasonably to be expected from children of his age.”
Another point made by the appellant is that it was not allowed to show that the accident was caused by the negligence of the parent. This being an action
The only remaining question is as to the amount of the judgment recovered. It is contended by the appellant that the amount of the verdict is excessive, showing prejudice and passion on the part of the jury. We are not willing to say that $15,000 will more than recompense the plaintiff for hobbling through life maimed and disfigured. We are aware that many courts have held in similar cases that the amount of this verdict was excessive, but we think it probable that if such injuries had happened to the judges themselves, or to members of their families, their views as to excessive damages would have undergone a radical change.
The judgment will be affirmed.
Scott and Gordon, JJ., concur.
Dissenting Opinion
(dessenting).— I feel compelled to dissent from what is said in the foregoing opinion as to the effect of the railroad company’s allowing, if it did allow, persons to travel along and across its right-of-way. In my opinion railroad companies occupy the same relation to the real estate which they own as other owners of such property. The general rule that an owner of uninclosed real estate will lose no rights by reason of the fact that he allows a path to be made across it without objection on his part, is too well settled to require the citation of authorities in its support. The plaintiff’s own evidence in the case at bar showed that the right-of-way of the appellant, along and across which persons had been accustomed to pass, was open to the common and entirely uninclosed. Hence, under the general rule above stated, the railroad
Upon the other questions discussed I express no opinion.