Swartwood's Guardian v. Louisville & N.R. Co.

• Decision Date: 12 June 1908
• Parties: SWARTWOOD'S GUARDIAN et al. v. LOUISVILLE & N. R. CO. et al.
• Court: Kentucky Court of Appeals

111 S.W. 305

129 Ky. 247

SWARTWOOD'S GUARDIAN et al. v. LOUISVILLE & N. R. CO. et al.

Court of Appeals of Kentucky.

June 12, 1908

Appeal from Circuit Court, Kenton County.

"To be officially reported."

Personal injury action by Willis Swartwood's guardian and others against the Louisville & Nashville Railroad Company and others. Judgment of dismissal on demurrer, and plaintiffs appeal. Affirmed.

B. F Graziana, for appellants.

Benjamin D. Warfield, S.D. Rouse, John Galvin, and Maurice Galvin, for appellees.

O'REAR C.J.

The question for decision in this case is whether railroad companies whose lines traverse cities and towns, or other populous communities, must maintain a lookout for children who are in the habit of jumping on and off the cars while in motion, although the railroad people did not know the particular child who might be injured by such practice was in fact upon its cars, and to provide against such injuries.

The petition in this case, which was held bad on demurrer alleged that the infant plaintiff, aged eight years, was attracted to appellee's trains in the city of Covington by other children jumping on and off the cars while in motion, stealing rides, and that the defendants were aware of the practices of such children at that point; that a watchman of the appellees, whose duty it was to lower and raise a nearby gate across a street railroad intersection, also knew of the practice of the children, but on the occasion of the plaintiff's injury took no precaution to learn whether he was on the train or not; that plaintiff, following the practice of the other children, and in attempting to jump on one of the moving cars, slipped and fell beneath it, thereby having a foot cut off. It is not charged that the defendants knew that plaintiff was attempting to make his perilous try at the time he did it, or that defendants neglected to use any precaution to save him from injury after discovering his peril. So the question comes down to the point stated in the beginning of this opinion. It is a fact of which we all know that railroads traverse streets and lots in our cities on their grade; that there is little or no protection against trespassing upon the railroad tracks; that children and others do so in spite of the well-known dangers of the practice. The Legislature has not taken action to require the railroad companies or the cities to maintain barriers against such trespassers. The habit of such trespassing, including perhaps, the childish tendency and practice of clambering onto the moving cars to get a short free ride, is well known also to everybody, including, of course, the railroad people. If the operators of the train know of the actual presence of such trespassers, for such they are, they are required by the humaneness of the law to not injure them if with the means at their command they can avoid doing so. Nor will the inconvenience and annoyance entailed be counted. The courts have never gone further than that. The Legislature may, but it has not. Any other rule particularly the one contended for by appellant, would require practically that such railroads should police all their lines and vehicles in such cities and towns in anticipation of the dangers to thoughtless and heedless persons. Because of their inexperience and childish instincts, infants of tender years are not always held to the same strict accountability as adults in such matters. The latter are charged with their own negligence in willfully going into such perilous places without right to do so; but, even if they were not negligent, as for example if they were insane, the rule would not be different. So the rule is not based entirely upon the negligence or even wrong of the so-called trespasser. Rather the reason a recovery is denied is because the railroad company has not been legally negligent of any duty it owed to such person. Without legal duty there cannot be actionable negligence. The duty is not owing because, as such person had not the right to be at the place, his presence need not be expected, and need not therefore be provided against. It...