Earl v. Chicago, Rock Island & Pacific Railway Co.

• Decision Date: 26 May 1899
• Citation: 79 N.W. 381,109 Iowa 14
• Parties: A. J. C. EARL, Administratrix of the Estate of Clement G. Earl, Deceased, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

79 N.W. 381

109 Iowa 14

A. J. C. EARL, Administratrix of the Estate of Clement G. Earl, Deceased, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

May 26, 1899

Appeal from Guthrie District Court.--HON. A. W. WILKINSON, Judge.

ACTION for damages. Verdict and judgment for plaintiff, and the defendant appealed.

Reversed.

Carroll D. Wright, John W. Foster, and Neal & Neal for appellant.

Ricker Crocker & Christie and Wm. D. Milligan for appellee.

OPINION

LADD, J.

The deceased had aided one Whitehead in loading stock in a car and somewhat later had walked with him from town to the caboose of the train, on which the latter was about to leave and both entered it. They were in conversation, but not transacting any business, and the deceased was not, and did not expect to be, a passenger. He had no business in the caboose, and his purpose in going there does not appear. Whitehead testified: "I do not know what his purpose was in coming into the caboose. I had no business to transact with Earl at the caboose. Didn't transact any business with him there." This caboose was attached to train No. 55, which had arrived from Casey on its way west. The switching had been completed, and the engine and cars taken up were about to be attached to the train on the main track. They had been there a few minutes when Whitehead arose to go to the door. He listened to Earl's statement concerning the bunch of cattle which the latter thought could be bought on his return, and at that instant, noticing the near approach of an engine and train from the east, jumped to the ground, and avoided injury. The caboose was run into and Earl killed. The engineer of the extra was about nine hundred feet from the caboose when he first saw it, but supposed it to be an old one on the side track. The train was moving at the rate of twelve or fifteen miles per hour. On coming within six hundred feet, he noticed that it was on the main track, and immediately reversed the engine and applied the air brakes. When near, he stepped to the ground, fearing the engine might not stop in time to avoid collision. The engineer testified that he used all appliances to stop the train, and this could be accomplished in moving from forty-two to forty-four rods, while the witness for the appellee was of opinion that it could have been stopped within thirty-five yards. There was evidence, though contradicted, tending to show that no emergency signal was given, and no signal to set brakes. It may be said that there was evidence from which negligence on part of the engineer might have been found but neither he nor any employe of defendant knew that Earl or any one else was within the car.

I. That deceased was a trespasser was established by the uncontradicted evidence. Not a passenger, nor in the caboose by license or invitation, the defendant owed him no active duty. He had no more right to enter and occupy the caboose under the circumstances shown, than to stand on its track, where he would be conceded to be a trespasser. The mere fact that passengers might be carried furnishes no excuse to one not sustaining that relation for using the car. Cabooses and coaches are not ordinarily held out to the public as places for visiting or the transaction of business, and those not passengers or employes, who enter for such purposes, do so without right. It is not claimed, nor could it be under the evidence, that the deceased went on the car as an escort, or by way of rendering necessary assistance to a passenger, or by the license or permission of the company. See Railway Co. v. Lawton, 55 Ark. 428, 29 Am. St. 48, and note (s. c. 18 S.W. 543). The situation of the deceased was not different from that of a person stealing a ride, to whom the company owes no duty, save that of refraining from willful or wanton injury. Railway Co. v. Brooks, 81 Ill. 245; Railroad Co. v. Meacham, 91 Tenn. 428 (19 S.W. 232); Dowd v. Railway Co., 84 Wis. 105 (54 N.W. 24); Gillis v. Railroad Co., 59 Pa. 129; Railroad Co. v. Harris, 71 Miss. 74 (14 So. 263). In the last case the court said: "To the trespassers on its trains, just as to trespassers on its tracks, the railroad company owe precisely the same duty which it owes to all mankind, and this duty is exactly what each man owes to every other; that is, abstention from wanton and willful injury in the use of one's property." The rule is thus stated in 3 Elliott Railroads, section 1255: "A railroad company owes trespassers no contract duty. Indeed, as already stated, the general rule is that it owes them no duty, except not to willfully injure them, and this rule applies to those who are attempting to steal a ride, or otherwise trespass upon the company's cars." Mere negligence is never sufficient; to be actionable, it must be in violation of some duty. The principle is thus put in Sweeny v. Railroad Co., 10 Allen 368: "There can be no fault or negligence or breach of duty where there is no act or service or contract which a party is bound to perform...