New York, N.H. & H.R. Co. v. Kelly, 106.

• Decision Date: 04 April 1899
• Docket Number: 106.
• Citation: 93 F. 745
• Parties: NEW YORK, N.H. & H.R. CO. v. KELLY.
• Court: U.S. Court of Appeals — Second Circuit

93 F. 745

NEW YORK, N.H. & H.R. CO. v. KELLY.

No. 106.

United States Court of Appeals, Second Circuit.

April 4, 1899

H. W Taft, for plaintiff in error.

M. P O'Connor, for defendant in error.

Before WALLACE and LACOMBE, Circuit Judges.

WALLACE Circuit Judge.

This is a writ of error by the defendant in the court below to review a judgment for the plaintiff entered upon the verdict of a jury.

The action was brought to recover damages for the death of William Fealy, the plaintiff's intestate, upon the theory that his death was caused by the negligence of the defendant. He was killed by the train of the defendant while he was lying upon the track. The evidence indicated that while intoxicated he had left the highway, and gone some distance along the track, and laid down between the rails, and fallen asleep, lying parallel with the rails; that, as the train of the defendant approached the place, it was running at a speed of about 25 miles an hour; that, after it had rounded a curve a quarter of a mile away, the engineer saw an object on the track, which he supposed to be a man's coat; that he and the fireman of the engine watched the object, in doubt as to what it was; that when about 150 feet away the fireman exclaimed 'My God. It's a man.' and the engineer then applied the air brakes, and stopped the train as soon as it could be stopped, but not before it had struck the deceased.

The instructions of the court to the jury submitted the case to them upon the theory that if the engineer or fireman supposed, or ought to have known, that the object seen by them on the track was a man, and did not then blow the whistle or slow up the train so as to have it under control the jury might find the defendant guilty of negligence. He refused to instruct the jury, as requested by the defendant, that the defendant was not responsible for an error of judgment on the part of the engineer or fireman as to what the object on the track was, if they exercised reasonable care in looking to see what it was; and he also refused to instruct them that, if the engineer believed that the object was a coat or a bundle, he was not negligent in acting upon that supposition until he discovered it to be incorrect. The assignments of error challenge the correctness of these rulings.

We are of the opinion that the case was presented to the jury by the trial judge under a wrong theory of the liability of the defendant. A railroad company ought not to be held responsible for running over a trespasser, who, sober or drunk, has located himself between its tracks and gone to sleep, in the absence of wanton negligence in the management of the train on the part of the employes in charge. The engineer owes it to the passengers on the train, and to persons lawfully upon the track, to keep a lookout, in order to prevent injury to them; but he owes no such duty to a trespasser. If, seeing him, and realizing that he will not probably remove...