192 Wis. 231 | Wis. | 1927
Lead Opinion
The case presents the question whether appellant was a licensee or a frequenter, or whether he was a tres
Sub. (2) of sec. 192.49 of the Statutes provides:
“It shall be unlawful for any person other than a licensee, or authorized newspaper reporters or those connected with or employed upon the railroad, to walk, loiter or be upon or along the track or tracks of any railroad in this state.”
This statute expresses a clear legislative intent to prohibit the general public from traveling upon a railway right of way. The purpose of this statute was to curtail the appalling loss of life that results from the use of railway tracks by pedestrians. The statute has for its purpose not only the protection of the lives of pedestrians, but also the lives of those who operate railway trains and of those who are passengers on such trains. European countries conserve human life by keeping the public off the rights of way of railways. America, by the abolition of grade crossings and the prohibition of the use of railway rights of way by pedestrians, is endeavoring to profit by the example of European nations. This law should be construed so as to permit it to accomplish its benevolent purpose, rather than to give it a construction that will lead to the sacrifice of human life, even if it may seem to work a hardship to the individual pedestrian who is injured while upon the railway right of way.
The first expression of the legislative will upon this subject is found in sec. 31 of ch. 119, Laws of 1872, which provided :
“It shall not be lawful for any person other than those connected with or employed upon the railroad, to walk along the track or tracks of any railroad, except when the same shall be laid along public roads or streets.”
But the rule has been established by the décisions of this court that continuous and long-continued use of a well-defined path across or along a railway right of way at or near depot grounds may be the basis of an implied license to pass across or along railway property. But the application of the rule as to licensees ought not to be extended so as to nullify the public policy of the state as declared by the legislature for the manifest purpose of protecting human life.
The Wisconsin cases in which pedestrians upon the right of way have been held to be licensees are those where it was established that large numbers of persons have for long periods of time traveled along well-defined paths upon the right of way. The decisions of this court clearly establish the rule that a license is not to be implied from such use as was made of this right of way by the children of two families going to and from school and by a teacher and by other occasional pedestrians who did not travel along any well-
The later cases evidence no intent to so extend the application of the rule as to legalize the presence of trespassers upon railway rights of way. A review of all the cases in which it has been held that a pedestrian on a right of way was a licensee shows that “the injury occurred at the station • or on the depot grounds or yard, where parties would naturally resort and cross over the same, and where the agents and servants of the company could exercise a proper degree of care and watchfulness under the circumstances; but we have not met with any case, in which the point was necessary to the decision, where it has been held that a license can be implied from such acts of frequent use by pedestrians or wayfarers of the main track or bridges or trestles distant from such places as a pathway for travel.” Anderson v. C., St. P., M. & O. R. Co. 87 Wis. 195, 205, 58 N. W. 79. No Wisconsin cases were cited and we have found none decided since the Anderson Case in which a pedestrian has been held to be a licensee upon a railway right of way which is as far removed from either depot grounds or switch tracks as was the place where appellant was injured. At the place of injury there were no tracks except the two parallel tracks'of the main line. The place of injury was not frequented by employees of the company except at such times as they came
The appellant was a trespasser, not a licensee. It follows that ch. 101 of the Statutes, which provides that it shall be the duty of the employer to furnish a safe place of employment, imposed no duty on the defendant in this case. The duty of the railway company to trespassers on its right of way is well defined. “The company is not bound to the exercise of any active duty of care or diligence towards mere trespassers on its track, to keep a lookout to discover or protect them from injury, except that, when discovered in a position of danger or peril, it is its duty to use all reasonable’ and proper effort to save and protect them from the probable consequences of their indiscretion or negligence.” Anderson v. C., St. P., M. & O. R. Co. 87 Wis. 195, 204, 58 N. W. 79. The defendant company did not discover appellant in any position of danger or peril and was never placed in a position where either under the rules of the common law or under joint orders of the railroad and industrial commissions it failed to perform any duty which it owed to one who was a trespasser upon its right of way.
It follows that the judgment must be affirmed and that it is not necessary to consider any of the other questions presented upon the argument.
By the Court. — Judgment affirmed.
The following opinion was filed March 8, 1927:
Dissenting Opinion
(dissenting in part). Clarence Sorenson, the plaintiff below, aged fourteen, while walking on the right
This court has frequently decided that children going on private property under such circumstances of long, accustomed usage are not trespassers, but, on the contrary, are licensees. A case squarely in point is that of Brinilson v. C. & N. W. R. Co. 144 Wis. 614, 129 N. W. 664, where children were accustomed to play on a breakwater, the private property of the railroad company and adjoining its tracks. The child was injured by falling through a hole occasioned by the removal of a plank, and in an action against the railroad company for negligence, notwithstanding the railroad company had a sign “No thoroughfare” and had frequently warned children away from the place, the court'held that the child was not a trespasser but was a licensee. The court, in a unanimous opinion, by Mr. Justice Siebecker, said:
“In the light of such facts and circumstances it cannot be said that persons who passed onto the breakwater and adjacent grounds were there under such forbidding circumstances as to make them trespassers. It seems reasonably clear that people customarily used this place as a footpath and that boys especially used it .as a place for the purposes of boating and swimming. These uses of the premises must be held to have been within the knowledge of the railroad’s agents and servants and that an implied permission existed which justified persons in so using the breakwater and adjacent grounds. Under these circumstances the persons so passing over' this place on these premises cannot be considered. trespassers; they must be considered as having entered onto the premises with the implied permission of the railroad company for the customary purposes. The license to so use the premises implies permission to so use them, and the railroad company cannot now be heard to charge that*238 such use constitutes a trespass. Under these circumstances persons making such customary use of the premises are licensees.”
That case was decided at the January term, 1911. The legislature of 1915 passed sec. 192.49, Stats., which reads as follows:
“192.49 (1) . . .
“(2) It shall be unlawful for any person other than a licensee, or authorized newspaper reporters or those connected with or employed upon the railroad, to walk, loiter or be upon or along the track or tracks of any railroad in this state. The provisions of this subsection shall not be construed to interfere:
“(a) With the lawful use of a public road or highway by any person or to prevent any person from driving across any railroad from one part of his land to another part thereof or from walking directly across the tracks or right of way of any railroad;
“(b) With the use of the right of way or track by any person when occasioned by or in connection with, either directly or indirectly, the shipping, loading or unloading of freight, seeking employment, the investigation or securing of evidence with respect to any accident or wreck, or in conducting or transacting any other business for or with said railroad ;
“(c) With the entry of any employee on said track or tracks during or on account of labor disputes by employees.
“(3) It shall be the duty of each railroad corporation in this state to post notices containing substantially the provisions and penalties of this section, in one or more conspicuous places in or about each railroad station. Any person violating any provision of subsection (2) or (3) of this section shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than one nor more than fifty dollars, or by imprisonment for not exceeding thirty days, or by both such fine and imprisonment.”
It will be noted that the statute, in its very first sentence, exempts licensees from the operation of the law. It does not define licensees, and to my mind there is only one reasonable
The court has laid down the rule that a license to walk on railroad property cannot now be implied from long-continued use without objection on the part of the company. In doing this they overrule the doctrine, long established, that a license to walk upon private property is implied from such customary use without objection of the owner. The statute, reasonably construed, gives the railroad companies the opportunity to prevent misuse of railroad property by the public,
In this case the jury found the railroad company free from negligence, and I do not dissent from the verdict.