Erie R. Co. v. Burke

• Citation: 214 F. 247
• Decision Date: 16 April 1914
• Docket Number: 209.
• Parties: ERIE R. CO. v. BURKE.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

214 F. 247

ERIE R. CO. v. BURKE.

No. 209.

United States Court of Appeals, Second Circuit.

April 16, 1914

Moot Sprague, Brownell & Marcy, of Buffalo, N.Y., for plaintiff in error.

Henry W. Brush, of Buffalo, N.Y., and C. W. Dille and Sylvester V McMahon, both of Cleveland, Ohio, for defendant in error.

Before LACOMBE, WARD, and ROGERS, Circuit Judges.

ROGERS Circuit Judge (after stating the facts as above).

This is an action to recover for personal injuries. The plaintiff in undertaking to cross the tracks of the defendant railroad caught his right foot in a switch point in the defendant company's railroad track. Four wheels of a locomotive engine in charge of the defendant's employes ran over the lower part of his leg. The leg was subsequently amputated about 5 1/2 inches below the knee, and the plaintiff was obliged to be in a hospital for weeks and went about on crutches for 12 months.

The railroad company claims that the plaintiff was nothing more than a trespasser or at best a mere licensee toward whom it owed no duty except to refrain from wantonly or willfully injuring him. The defendant asserts that the plaintiff was not upon its tracks upon invitation, express or implied, nor because of any business connected with it, but was there upon his own volition, uninvited, concerning a matter which was personal to himself and in which the defendant had no interest; that as the plaintiff was using the tracks for his own convenience alone, and not for any purpose of business connected with the defendant and was in a place of known danger, he was there at his own risk and assumed the attendant perils.

The courts have held in numerous decisions that a licensee enters upon the premises at his own risk and enjoys the license subject to its concomitant perils. The rule has been so laid down in the courts of Ohio, where this accident occurred (Kelly v. Columbus, 41 Ohio St. 263), and by the courts of New York where this action was brought (Sterger v. Van Sicklen, 132 N.Y. 499, 30 N.E. 987, 16 L.R.A 640, 28 Am.St.Rep. 594). And in a case in the Ninth Circuit the Circuit Court of Appeals decided, in Smith v Day, 100 F. 244, 40 C.C.A. 366, 49 L.R.A. 108 (1900):

'That one going voluntarily in the prosecution of his own business on premises where blasting was being done by contractors, knowing that blasting was going on, assumed the risks incident to the prosecution of the work with ordinary care, though he was there by sufferance or permission of the contractors.'

It is said in New Jersey that a licensee is only relieved from being a trespasser and that he must assume all the ordinary risk attached to the nature of the place or the business carried on. Phillips v. Library Company of Burlington, 55 N.J.Law, 307, 27 A. 478. In 29 Cyc. 449, the law is stated as follows:

'The rule is well settled that an owner of premises owes to a licensee no duty as to the condition of such premises unless imposed by statute, save that he should not knowingly let him run upon a hidden peril, or wantonly or willfully cause him harm.'

The question we have to consider is whether the defendant company under the circumstances of this case was governed by the principle above stated and was under no obligations to the plaintiff except to refrain from wantonly or willfully causing him harm.

The court in the charge to the jury instructed them in reference to this matter as follows:

'The general rule of law is, gentlemen, that, if a person goes upon the tracks of a railroad without permission or license to do so, he becomes a trespasser, and under such circumstances the single duty devolving upon the railroad company is to avoid injuring such person unnecessarily if he is observed to be upon the tracks or premises of the railroad company. In such situation as that, where a person has intruded himself upon the roadway or tracks of a railroad company, the railroad company owes no duty until the intruder or trespasser is observed, and then such acts or steps must be taken by those in charge of the train as to avoid injuring the person if possible.

'Of course, gentlemen, if a trespasser or intruder upon the tracks of a railroad company is menaced by an approaching train, and if he is perceived, then the railroad company is liable if those in charge of the train wantonly or recklessly do an injury to such person; but this rule of law need not concern you, because it is not applicable to the facts in this case. It is not claimed-- except so far as it may be claimed by the defendant-- that the plaintiff was a trespasser, but what I mean to say is that the rule of law applying to a trespasser does not obtain herein, but another rule of law, and the one I shall shortly call your attention to; preliminarily, you should understand that a railroad company in operating its cars and trains has ordinarily the right to presume that its tracks are free from trespassers, and when a moving train is away from a crossing it cannot be expected to extend a higher duty toward persons having no right to be on the tracks than to avoid wantonly, willfully, and unnecessarily injuring them. * * *

'There is, however, another rule which you should understand, and that is that where a railroad company has allowed the public to go upon its tracks along its right of way for a particular distance in order to reach a particular place, and to go across the tracks-- such permission being express or implied, the railroad company is bound to use ordinary care to avoid injuring those persons present on the tracks-- those persons whom it has reasons to anticipate may be there in the course of the existence of the license. * * *

'In such a situation the railroad company is required to exercise reasonable care in the movement of its trains at the point where persons are known to cross; the right to refuse such crossing, or such use of the tracks and exclude the persons from its right of way is with the railroad company; but, having permitted such use, or assented thereto, or having refrained from objecting or interfering or enforcing such objection, it is bound to take notice of the danger to those who may cross or walk along the tracks at that point, and exercise caution and reasonable care in the operation of its trains, to the end that no injury may result. In such situation, gentlemen, ordinary care is required of the railroad company as well as of the person using the license.

The theory of the law, as I have stated, is that, if the company has knowledge of the manner...