The fact that the road was fenced at the place of collision with the horses, was a circumstance to be considered in connection with the other circumstances of the case in determining whether the engineer was guilty of negligence in not looking ahead and discovering the danger in time to avoid it. The fact that the road was fenced rendered it less probable that wandering animals would be on the track; but it cannot be said that the engineer, as a matter of law, by reason of the fences, was wholly excused from keeping a lookout ahead of the train.
If the servants of the company in charge of the train, having due regard to their duties for the safety of the persons and property in their charge, could, by the exercise of ordinary care, have seen and saved the horses, we think they were bound to have done so. Bemis v. Conn., &c. R. R., supra, 381; Louis. & Nash. R. R. Co. v. Wainscott, 3 Bush, 149.[[129]]
Judgment affirmed.
SHEEHAN v. ST. PAUL & DULUTH R. CO.
United States Circuit Court of Appeals, Seventh Circuit, October 16, 1896.
Reported in 46 U. S. Appeals, 498.
Seaman, J.[[130]] The plaintiff at the time of his injury was neither in the relation of passenger nor of one in a public crossing or place in which the public were licensed to travel, but upon the undisputed facts was a mere intruder on the tracks of the defendant, technically a trespasser; and this record excludes any of the elements of implied license or invitation to such use which have given rise to much discussion and diversity of views in the courts. Therefore the inquiry is here squarely presented, What is the duty which a railway company owes to a trespasser on its tracks, and how and when does the duty arise? The decisions upon this subject uniformly recognize that the trespasser cannot be treated as an outlaw; and at the least that, if wantonly injured in the operation of the railroad, the company is answerable in damages. Clearly, then, an obligation is placed upon the company to exercise some degree of care when the danger becomes apparent. Is it, however, bound to foresee or assume that rational beings will thus enter as trespassers in a place of danger, and to exercise in the running of its trains the constant vigilance in view of that probability which is imposed for public crossings? There are cases which would seem to hold this strict requirement (see note, 1 Thompson on Negligence (1880), 448; East Tennessee and Georgia Railroad Co. v. St. John, 5 Sneed, 524); but by the great preponderance of authority, in this country and in England, the more reasonable doctrine is pronounced, in effect, as follows: That the railroad company has the right to a free track in such places; that it is not bound to any act or service in anticipation of trespassers thereon; and that the trespasser who ventures to enter upon a track for any purpose of his own assumes all risks of the conditions which may be found there, including the operation of engines and cars. Wright v. Boston and Maine Railroad, 129 Mass. 440; Philadelphia and Reading Railroad Company v. Hummell, 44 Penn. St. 375. The decision by this court, in Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Philips’ Administrator (1), 24 U. S. Appeals, 489, adopts the view held in this line of cases, citing the authorities of which repetition here is unnecessary. The same doctrine prevails in Minnesota, where the injury in question arose. Johnson v. Truesdale, 46 Minnesota, 345; Studley v. St. Paul & Duluth R. Co., 48 Minnesota, 249. In the latter case it was held that there could be no recovery “unless the engineer saw the girl in time to avoid the accident, and then was guilty of such gross negligence in not trying to avoid it as to evince a reckless disregard of human life;” and the opinion gives this further exposition of the rule: “The defendant’s engineer was under no obligation to anticipate a trespasser, or to look out for persons walking upon the track; but, upon discovering plaintiff’s intestate across the cattle-guard, as he claims she was when he noticed that she was in danger, it became the engineer’s duty to use proper care to avoid running her down. If he failed to exercise proper care, he would necessarily be grossly negligent and evince a reckless disregard of human life.” So in Wisconsin, in Anderson v. Chicago, St. Paul, Minneapolis & Omaha Railway Company, 87 Wisconsin, 195, 204, it is said: “The use of a railroad is exclusively for its owners or those acting under its authority, and the company is not bound to the exercise of any active duty of care or diligence towards mere trespassers upon 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.”
The well-established and just rule which holds the railroad company to the exercise of constant and strict care against injury through its means is applicable only to the relation on which it is founded, of an existing duty or obligation. This active or positive duty arises in favor of the public at a street crossing or other place at which it is presumable that persons or teams may be met. It is not material, so far as concerns this inquiry, whether the place is one for which a lawful right of passage exists, as it is the fact of notice to the company arising out of its existence and the probability of its use which imposes the positive duty to exercise care; the requirement of an extreme degree of care being superadded because of the hazards which attend the operations of the company. The case of a trespasser on the track in a place not open to travel is clearly distinguishable in the absence of this notice to the company. There is no constructive notice upon which to base the obligation of constant lookout for his presence there, and no actual notice up to the moment the trainmen have discovered the fact of his peril. As that peril comes wholly from his unauthorized act and temerity, the risk and all positive duty of care for his safety rest with the trespasser. The obligation of the company and its operatives is not then preëxisting, but arises at the moment of discovery, and is negative in its nature,—a duty which is common to human conduct to make all reasonable effort to avert injury to others from means which can be controlled.
This is the issue presented here. It excludes all inquiry respecting the character of the roadbed, cattle-guard, locomotive, brake appliances or other means of operation, or of the speed or manner of running the train up to the moment of notice, because no breach of positive duty is involved. It is confined to the evidence relating to the discovery by the engineer and fireman of the plaintiff’s peril and to the efforts then made to avert the injury; and out of that to ascertain whether, in any view which may justly be taken, it is shown that these men or the engineer in disregard of the duty which then confronted them neglected to employ with reasonable promptness the means at hand for stopping the train.[[131]]
Brett, M. R., in HEAVEN v. PENDER
(1883) 11 Queen’s Bench Division, 503, 506, 507.
Brett, M. R.... The action is in form and substance an action for negligence. That the stage was, through want of attention of the defendant’s servants, supplied in a state unsafe for use is not denied. But want of attention amounting to a want of ordinary care is not a good cause of action, although injury ensue from such want, unless the person charged with such want of ordinary care had a duty to the person complaining to use ordinary care in respect of the matter called in question. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff, without contributory negligence on his part, has suffered injury to his person or property. The question in this case is whether the defendant owed such a duty to the plaintiff.