Papich v. Chi., M. & St. P. Ry. Co.

• Decision Date: 13 May 1918
• Docket Number: No. 30510.,30510.
• Citation: 167 N.W. 686,183 Iowa 601
• Court: Iowa Supreme Court
• Parties: PAPICH v. CHICAGO, M. & ST. P. RY. CO.

183 Iowa 601

167 N.W. 686

PAPICH

v.CHICAGO, M. & ST. P. RY. CO.

No. 30510.

Supreme Court of Iowa.

May 13, 1918.

Appeal from District Court, Polk County; Wm. H. McHenry, Judge.

Suit by appellant to recover for injuries sustained by his minor son. Verdict was directed for defendant, and plaintiff appeals. Affirmed.A. H. Hoffman and Guy A. Miller, both of Des Moines, for appellant.

Cook, Hughes & Sutherland, of Cedar Rapids, and O. M. Brockett, of Des Moines, for appellee.

SALINGER, J.

I. A boy something like six years old left ice, whereon he was playing, to go home. He traveled a path which crossed the tracks of the defendant, and we may assume for present purposes this path was a licensed one. When he reached the tracks he found them blocked by cars placed there by defendant. At this point the petition alleges that he “thereupon attempted to crawl or pass under said empty coal car, * * * when the defendant backed a line of cars with an engine attached thereto down said side track and struck the said line of cars standing on said side track * * * and set the same in motion,” and so he was injured. The evidence shows that there were cars across this path, and that the train moved upon and struck them at a speed of some six miles an hour, without ringing a bell or giving a whistle or any other signal, and that there was no watchman.

[1][2] Eliminating from present consideration the alleged license; the absence of warning by bell, whistle, or other signal, that no watchman was present to drive the child from beneath the cars, and the claim that the backing against the standing cars was at excessive speed, and some other claims of appellant, and we have the case of a six year old boy who was hurt while crawling under a freight car that was blocking his way across the track. To be sure, the petition adds the highly material claim that the employés of defendant saw him while venturing on this perilous undertaking. But there is no evidence to support the claim. If the aforesaid eliminations are made, it will not meet the necessities of plaintiff's case if the evidence sustained the claim that, had reasonable diligence been used, the boy might have been seen in time to save him from injury. With said matters eliminated, defendant owed the boy no duty save to avoid injurying him wantonly, to save him from injury if his attempt to go under the car was seen in time to save him. It is the settled law, as to infants as well as adults, that if one is injured by going under cars which may be moved at any time he must be dealt with as a trespasser. Thomas v. Railway, 93 Iowa, 253, 61 N. W. 967;Id., 103 Iowa, 657, 72 N. W. 783, 39 L. R. A. 399;Id., 114 Iowa, 173, 86 N. W. 259. The only duty owing such a trespasser is to refrain from willfully injuring him after his peril is perceived if there then be time to avoid his injury. From the vast number of cases supporting this proposition we select a few. See Thomas v. Railway, 93 Iowa, at 252, 61 N. W. 967;Bourrett v. Railway, 152 Iowa, 582, 132 N. W. 973, 36 L. R. A. (N. S.) 957;Gregory v. Railway, 126 Iowa, 230, 101 N. W. 761;Chrystal v. Railway, 105 N. Y. 164, 11 N. E. 380. In Masser v. Railroad, 68 Iowa, 602, 27 N. W. 776, it is said:

“But the plaintiff contends that the boy might and should have been discovered sooner. It seems not improbable that he might have been discovered a little sooner, but no locomotive engineer is bound to watch out for trespassers upon the track--the company does not owe trespassers that kind of care”--and that this has been settled by repeated adjudications, citing them.

An infant may not recover unless the negligence of the owner was wanton or evinced an indifference to the plaintiff's safety after his position of peril is discovered. Gwynn v. Duffield, 66 Iowa, 713, 24 N. W. 523, 55 Am. Rep. 286. In some way it must appear there was actual knowledge, not merely that there was means of knowledge. Dale v. Company, 131 Iowa, 67, 107 N. W. 1096. It is not enough to show the trespasser ought to have been seen. It must appear he actually was seen, and that his peril was appreciated long enough before the accident to have enabled the defendant to avoid injuring him. Purcell v. Railroad, 117 Iowa, 667, 91 N. W. 933;Earl v. Railroad, 109 Iowa, 14, 79 N. W. 381, 77 Am. St. Rep. 516.

[3][4] Since no duty to the trespasser arises until he is actually seen, it follows of necessity no care is due him before his peril is known. On that theory the general rule has been worked out that an owner of property trespassed upon is not liable for an injury resulting from the trespass merely because care might have successfully guarded against such injury. Hounsell v. Smyth, 7 C. B. (N. S.) 731; Hargreaves v. Deacon, 25 Mich. 1;Gavin v. City, 97 Ill. 68, 37 Am. Rep. 99; Bishop v. Railroad, 14 R. I. at 318, 51 Am. Rep. 386. Therefore we held in Thomas v. Railway, 93 Iowa, at page 252, 61 N. W. 967, that the company is not required to keep a lookout for trespassers. It was said in Bishop v. Railroad, 14 R. I. at page 318, 51 Am. Rep. 386, that one is not bound to employ a watchman to guard cars from an intrusion during the transit which is the result of a momentary impulse on part of a child, and that ordinarily one who is using his property in a public place is not obliged to employ a special guard to protect same from the intrusion of children merely because an intruding child may be injured by intruding. See, also, Lygo v. Newbold, 9 Ex. Ch. Rep. 32; Austin v. Railway, L. R. 2 Q. B. 442, 446. In a very large number of cases, including cases in this jurisdiction, it is held the company is not bound to have safeguards, say fences, to keep children off of its tracks and cars. A property owner need not guard against injury to a venturesome boy merely because it is possible for him to get into the zone of danger. Anderson v. Railroad, 150 Iowa, 465, 130 N. W. 391;Masser v. Railroad, 68 Iowa, 602, 27 N. W. 776;Merryman v. Railroad, 85 Iowa, 634, 52 N. W. 545;Carson v. Railroad, 96 Iowa, 583, 65 N. W. 831;Keefe v. Electric Co., 21 R. I. 575, 43 Atl. 542;Sullivan v. Railroad, 156 Mass. 378, 31 N. E. 128. It is held in Chicago Ry. v. McLaughlin, 47 Ill. 265, that it is no part of the duty of the railroad to maintain a guard over cars left standing upon its tracks in order to keep children playing about them from getting upon or under them. It is not negligence for a railroad company to omit keeping a lookout to prevent boys from swinging on ladders on its slowly moving freight trains. Catlett v. Railway, 57 Ark. 461, 21 S. W. 1062, 38 Am. St. Rep. 254.

[5][6][7] It follows that there was here no duty to give warning that the cars were about to be moved. Brackett v. Railway (Ky.) 111 S. W. 710, 19 L. R. A. (N. S.) 558;Schmidt v. Railway, 181 Fed. 83, 104 C. C. A. 251;Pennsylvania Ry. v. Martin, 111 Fed. 586, 49 C. C. A. 474, 55 L. R. A. 361. As to adults who attempt to go under cars, and the like, it is the rule that there is no duty to signal by bell, whistle, or to give warning in any other way. See Smith v. Railway, 55 Iowa, 33, 7 N. W. 398; 3 Elliott, Railroads, § 1169; Gulf Ry. v. Dees, 44 Okl. 118, 143 Pac. 852;Platt v. Railway, 134 La. 444, 64 South. 282, 50 L. R. A. (N. S.) 1012, Ann. Cas. 1916A, 507;Brackett v. Railway (Ky.) 111 S. W. 710, 19 L. R. A. (N. S.) 558;Schmidt v. Railway, 181 Fed. 83, 104 C. C. A. 251;Penn. Ry. v. Martin, 111 Fed. 586, 49 C. C. A. 474, 55 L. R. A. 361;Wherry v. Railway, 64 Minn. 415, 67 N. W. 223; Railway v. McLaughlin, 47 Ill. 265. And the rule applies to infant trespassers. See Railroad v. Hummell, 44 Pa. 375, 84 Am. Dec. 457;Brown v. Lynn, 31 Pa. 510, 72 Am. Dec. 768;Reeves v. Railroad, 30 Pa. 454, 72 Am. Dec. 713. It will not create liability that the standing cars were approached by a train moving at the rate of some six miles an hour (Barry v. Light Co., 119 Iowa, at page 63, 93 N. W. 68, 95 N. W. 229), nor that such train was moved violently (Dillon v. Railway, 118 Iowa, 645, 92 N. W. 855). Nor does it matter that our statutes prohibit the obstructing of public roads, private ways, commons, and landing places. He who attempts to pass between cars coupled to an engine that is standing still cannot recover on the ground that the train was blocking a street or passage way for an unreasonable length of time. Platt v. Railway, 134 La. 444, 64 South. 282, 50 L. R. A. (N. S.) 1012, Ann. Cas. 1916A, 507.

[8] There is dispute as to which of the parties has the burden of proof on whether inspection was made. What we have already said settles that this is an immaterial dispute because the company was under no duty to make an inspection. We have to add to what has been said that the duty to look out does not exist as to looking under cars or into openings between cars. See Hebard v. Mabie, 98 Ill. App. 543;Peters v. Bowman, 115 Cal. 345, 47 Pac. at page 599, 56 Am. St. Rep. 106;Garner v. Trumbull, 94 Fed. 321, 36 C. C. A. 361;Teakle v. Railroad, 32 Utah, 276, 90 Pac. 402, 10 L. R. A. (N. S.) 486.

(a) We now reach whether any matters thus far eliminated from consideration make for plaintiff a case for a jury. Appellant cites cases that there is liability where there is sufficient invitation of the action of the child by means of tempting his childish instincts. Bishop v. Railroad, 14 R. I. at 321, 51 Atl. 386. And he cites other cases, of which Lynch v. Murden, 1 Q. B. (N. S.) 29, Louisville R. R. v. Popp, 96 Ky. 99, 27 S. W. 992, and Cleveland Ry. v. Means, 59 Ind. App. 383, 104 N. E. 785, 108 N. E. 375, are fair samples. On analysis these cases involve “attractive nuisances.” But appellant does not claim to be in strictness within the attractive nuisance and turntable cases. And an analysis of his argument discloses he concedes that the mere placing of an empty coal car on a side track does not bring his case within those cases. The digests overflow with cases holding with this concession, and that things like an empty coal...