Arizona & N. M. Ry. Co. v. Nevitt

• Decision Date: 19 March 1902
• Docket Number: Civil 772
• Citation: 68 P. 550,8 Ariz. 56
• Parties: ARIZONA AND NEW MEXICO RAILWAY COMPANY, Defendant and Appellant, v. ROBERT NEVITT, Plaintiff and Appellee
• Court: Arizona Supreme Court

68 P. 550

8 Ariz. 56

ARIZONA AND NEW MEXICO RAILWAY COMPANY, Defendant and Appellant, v. ROBERT NEVITT, Plaintiff and Appellee

Civil No. 772

Supreme Court of Arizona

March 19, 1902

APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Graham. F. M. Doan, Judge. Affirmed.

The facts are stated in the opinion.

M. J Egan, and Kibbey & Edwards, for Appellant.

From the standpoint of the appellee, he was only a licensee; and when he entered upon the right of way of this company to walk along its tracks and right of way he took upon himself all the hazards and perils incident to his intrusion thereon. The railroad company had a right to shift its cars from one track to the other in the ordinary operation of its business, and was not bound to modify, delay, postpone, or otherwise change its usual methods for the mere convenience of any one who took upon himself the hazard of walking down those tracks. Egan v. Montana Central Ry. Co., 24 Mont. 569, 63 P 831.

No duty was imposed by law on the defendant any other or greater than they would have owed to a naked trespasser. Sweeney v Railroad Co., 10 Allen, 368, 87 Am. Dec. 644; Richards v. Chicago Railway Co., 81 Iowa 426, 47 N.W. 63; Weldon v. Philadelphia Railway Co., 2 Pen (Del.) 1, 43 A. 156; Settoon v. Texas and P. Ry. Co., 48 La. Ann. 807, 19 So. 759.

The following cases hold that owners of private property are not required to provide against danger of accident, but of course could not wantonly injure any one: Sweeney v. Old Colony R.R. Co., 10 Allen, 373, 87 Am. Dec. 644; Hickey v. Boston L. and R. Co., 14 Allen, 429; Philadelphia etc. R.R. Co. v. Hummell, 44 Pa. St. 375, 84 Am. Dec. 457; Gillis v. Pennsylvania R. Co., 59 Pa. St. 129, 98 Am. Dec. 317; Finlayson v. Chicago B. and Q.R. Co., 1 Dill. 579, Fed. Cas. No. 4793.

A railroad company is bound to exercise proper care to avoid striking a trespasser on its track after its servants know such trespasser is in danger, but the company is not bound to keep a lookout for the benefit of trespassers. Scheffler v. Railroad Co., 32 Minn. 518, 21 N.W. 711; Planz v. Boston and A.R. Co., 157 Mass. 377, 32 N.E. 356; Brown v. Lynn, 31 Pa. St. 510, 72 Am. Dec. 768; Isbell v. New York etc. R.R. Co., 27 Conn. 393, 71 Am. Dec. 78; Baltimore Traction Co. v. Wallace, 77 Md. 435, 26 A. 518; Louisville etc. R.R. Co. v. Kellum's Admx., 14 Ky. Law Rep. 734, 21 S.W. 230; Curry v. Chicago etc. R.R. Co., 43 Wis. 665; Hepfel v. St. Paul etc. Ry., 49 Minn. 263, 51 N.W. 1049; Haden v. Sioux City etc. R.R. Co., 92 Iowa 226, 60 N.W. 537.

Edwards & McFarland, for Appellee.

When the community for years had been accustomed to use this right of way as a foot-path without objection, the railroad company is chargeable with notice of such usage; at least, its consent is clearly inferable. In such cases there arises on the part of the railroad company a duty to use all reasonable care and diligence to prevent injury to persons who are likely to be on its right of way. Hansen v. Southern Pacific Co., 105 Cal. 379, 38 P. 957; Cahill v. Chicago etc. Ry. Co., 74 F. 285, 20 C.C.A. 184; Roth v. Union Depot Co., 13 Wash. 525, 43 P. 641, 44 P. 253, 31 L.R.A. 855; Young v. Clark, 16 Utah 42, 50 P. 832; Barry v. New York Cent. etc. R.R. Co., 92 N.Y. 289, 44 Am. Rep. 377; Byrne v. New York Cent. etc. R.R. Co., 104 N.Y. 362, 58 Am. Rep. 512, 10 N.E. 539; Whalen v. Chicago etc. Ry. Co., 75 Wis. 654; Johnson v. Lake Superior etc. Co., 86 Wis. 64, 56 N.W. 161; Connell v. Chesapeake O. Ry. Co., 22 Ky. Law Rep. 501, 58 S.W. 374; Tutt v. Illinois Cent. Ry. Co., 104 F. 741, 44 C.C.A. 320.

The testimony showed that the approaching cars had no brakeman upon them; that no warnings were given; that no means were taken to avoid collisions with persons who might be expected to be found upon the tracks or right of way of the appellant. Under such circumstances, it was proper for the jury to determine whether such management was negligence. Mt. Adams etc. Ry. Co. v. Lowery, 74 F. 463, 20 C.C.A. 596; Travelers' Ins. Co. v. Randolph, 78 F. 754, 24 C.C.A. 305; Thompson v. Northern Pacific Ry. Co., 93 F. 384, 35 C.C.A. 357; Richardson v. Swift & Co., 96 F. 699, 37 C.C.A. 557; Tutt v. Illinois Cent. Ry. Co., 104 F. 741, 44 C.C.A. 320; S.C. and Pac. Ry. Co. v. Stout, 84 U.S. 657, 21 L.Ed. 745; Phoenix Mutual Life Ins. Co. v. Doster, 106 U.S. 30, 1 S.Ct. 18, 27 L.Ed. 65; Jones v. East Tennessee etc. Ry. Co., 128 U.S. 443, 9 S.Ct. 118, 32 L.Ed. 478; Chicago B. and Q.R.R. Co. v. Gunderson, 174 Ill. 495, 51 N.E. 708.

OPINION

SLOAN, J.

-- Robert Nevitt, the appellee herein, brought suit in the district court of Graham County against the Arizona and New Mexico Railway Company, a corporation, appellant herein, to recover damages for personal injuries alleged to have been received by him by being struck and knocked down by a train belonging to and being operated by said railway company while he (appellee) was walking between two tracks upon appellant's right of way. It is charged in the complaint that the employees of appellant wantonly, recklessly, and willfully, and without giving appellee any warning whatever of the approach of said train, and while making what is commonly known as a "flying switch," ran him down, and inflicted the injuries complained of. It is shown by the record that at the October, 1900, term of court a trial of the action was had, and a verdict and judgment rendered against the appellant in the sum of fifteen thousand dollars. A motion for a new trial was made by appellant, which was granted. Upon the new trial of the action, after the appellee had introduced his evidence, the appellant moved the court to instruct the jury to return a verdict for it, which motion was by the court overruled. The case then went to the jury under the instructions of the court, without the introduction of any evidence on the part of the appellant. The jury rendered a verdict against the appellant in the sum of three thousand dollars, and judgment was thereupon entered thereon. Appellant moved the court for a new trial, which motion was denied, whereupon this appeal was taken.

Three assignments of error are alleged by appellant. Counsel for appellant, in their brief, chose to discuss questions raised by these several assignments under the one assignment that the court erred in refusing to instruct the jury to return verdict for appellant. The material facts put in evidence by the appellee are substantially as follows: The appellant owns and operates a narrow-gauge railroad from the town of Lordsburg, in New Mexico, to and beyond the town of Clifton in the county of Graham, in this territory. It was in the town of Clifton that the accident occurred, and near the company's depot building, and within the railroad yards at that place. At the time of the accident, which was in the early morning, the plaintiff was going from his house in the southern portion of the town of Clifton, in a northerly direction, to the reduction works of the Arizona Copper Company, where he was employed. It was shown that, while there was a public highway leading from the part of the town where appellee lived to said reduction works, for many years it was the custom of the appellee and other employees of said reduction works to go up and down, along, over, and across the tracks in the said yard and right of way of the railroad company. It was not shown that the railroad company had given any consent to this use of its right of way and tracks, except such implied consent as might be inferred from their suffering this use to be made of the same without objection. The appellee testified that he entered upon the right of way of the railroad company at a point about one hundred and sixty feet south of the depot, and proceeded in a northerly direction between two of the tracks of the yard designated as "Track No. 2" and "Track No. 3." The distance between these two tracks, measured between the rails, was about seven feet. He stated that as he approached the depot he passed to the right of the frog that connected track No. 2 and track No. 3. Standing immediately over the frog was an engine, headed south, with one car coupled on the front and two behind. The engine was at the time standing still, almost directly over the frog which connected track No. 3 and track No. 2. After passing the engine, he proceeded along the footpath between the two tracks on his way north. The wind at the time was blowing from the direction of the powerhouse of the reduction works. On the main track, and in front of the depot, a train was then standing, which was due to leave for Lordsburg at that hour. Appellee was walking, as he states, at a rapid pace. After he had passed the engine a distance of one hundred feet, he met a Mr. Schumann, and passed to the right of him, and continued to walk between tracks 2 and 3. He stated that as he passed the depot he saw a number of people passing in and out. Shortly afterwards he lost consciousness. He stated that before losing consciousness he remembered that he had reached a distance of about three hundred or four hundred feet from where he saw the engine standing; that he had, when he reached the point where the highway crossed the track, which was about one hundred and fifty feet north of the engine, glanced back to see if the engine was moving, and found that it was standing still. He thought at the time he lost consciousness he was walking nearer track No. 3 than track No. 2, but was in the pathway between the two tracks. He stated that he heard no bell, and did not notice the noise of an approaching train but did distinctly remember hearing the noise from the gas engines at the reduction works. The wind was coming from that direction. He also stated...