Papich v. Chicago, Milwaukee & St. Paul Railway Co.

Decision Date13 May 1918
Docket Number30510
PartiesSTANKO PAPICH, Appellant, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellee
CourtIowa Supreme Court

Appeal from Polk District Court.--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 Hoffmann and Guy A. Miller, for appellant.

Cook Hughes & Sutherland and O. M. Brockett, for appellee.

SALINGER J. PRESTON, C. J., LADD and EVANS, JJ., concur.

OPINION

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. It is alleged that, when he reached the tracks, he found them blocked by cars placed there by defendant, and 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.

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 employees 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 injuring 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. Chicago, M. & St. P. R. Co., 93 Iowa 248, 253, 61 N.W. 967; same case, 103 Iowa 657; same case, 114 Iowa 169, 173. The only duty owing such a trespasser is to refrain from wilfully 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. Chicago, M. & St. P. R. Co., 93 Iowa 248, at 252, 61 N.W. 967; Bourrett v. Chicago, M. & St. P. R. Co., 152 Iowa 579, 582, 132 N.W. 973; Gregory v. Wabash R. Co., 126 Iowa 230, 101 N.W. 761; Chrystal v. Troy & B. R. Co., 105 N.Y. 164 (11 N.E. 380). In Masser v. Chicago, R. I. & P. R. Co., 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 708, 713, 24 N.W. 523. In some way, it must appear there was actual knowledge, not merely that there was means of knowledge. Dale v. Colfax Cons. Coal Co., 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. Chicago & N.W. R. Co., 117 Iowa 667, 91 N.W. 933; Earl v. Chicago, R. I. & P. R. Co., 109 Iowa 14, 79 N.W. 381.

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 of Chicago, 97 Ill. 66, 68; Bishop v. Union R. Co., 14 R.I. 314, at 318. Therefore, we held in Thomas v. Chicago, M. & St. P. R. Co., 93 Iowa 248, at 252, 61 N.W. 967, that the company is not required to keep a lookout for trespassers. It was said in Bishop v. Union R. Co., 14 R.I. 314, at 318, that one is not bound to employ a watchman to guard cars from an intrusion during 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. Rep. 302; Austin v. Great Western R. Co., 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. Ft. Dodge, D. M. & S. R. Co., 150 Iowa 465, 130 N.W. 391; Masser v. Chicago, R. I. & P. R. Co., 68 Iowa 602, 27 N.W. 776; Merryman v. Chicago, R. I. & P. R. Co., 85 Iowa 634, 52 N.W. 545; Carson v. Chicago, R. I. & P. R. Co., 96 Iowa 583, 65 N.W. 831; Keefe v. Narragansett Elec. L. Co., 21 R.I. 575 (43 A. 542); Sullivan v. Boston & A. R. Co., 156 Mass. 378 (31 N.E. 128). It is held in Chicago & A. R. Co. 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 Co., 57 Ark. 461 (21 S.W. 1062).

It follows that there was here no duty to give warning that the cars were about to be moved. Brackett v. Louisville & N. R. Co., (Ky.) 111 S.W. 710; Schmidt v. Pennsylvania R. Co., 181 F. 83; Pennsylvania R. Co. v. Martin, (C. C. A.) 111 F. 586. 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. C., R. I. & P. R. Co., 55 Iowa 33, 7 N.W. 398; 3 Elliott on Railroads (2d Ed.), Section 1169; Gulf, C. & S. F. R. Co. v. Dees, 44 Okla. 118 (143 P. 852); Platt v. Vicksburg, S. & P. R. Co., 134 La. 444 (64 So. 282); Brackett v. Louisville & N. R. Co., (Ky.) 111 S.W. 710; Schmidt v. Pennsylvania R. Co., 181 F. 83; Pennsylvania R. Co. v. Martin, (C. C. A.) 111 F. 586; Wherry v. Duluth, M. & N. R. Co., 64 Minn. 415 (67 N.W. 223); Chicago & A. R. Co. v. McLaughlin, 47 Ill. 265. And the rule applies to infant trespassers. See Philadelphia & R. R. Co. v. Hummell, 44 Pa. 375; Brown v. Lynn, 31 Pa. 510, 7 Casey 510; Reeves v. Delaware, L. & W. R. Co., 30 Pa. 454, 6 Casey 454. 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. Burlington R. & L. Co., 119 Iowa 62, at 63, 93 N.W. 68), nor that such train was moved violently ( Dillon v. Iowa Cent. R. Co., 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. Vicksburg, S. & P. R. Co., 134 La. 444 (64 So. 282).

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 P. 598, at 599); Garner v. Trumbull, (C. C. A.) 94 F. 321; Teakle v. San Pedro, L. A. & S. L. R. Co., 32 Utah 276 (90 P. 402).

1-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. Union R. Co., 14 R.I. 314, at 321. And he cites other cases of which Lynch v. Nurdin, 1 Adolphus and Ellis (N. S.) 29, Louisville & N. R. Co. v. Popp, 96 Ky. 99 (27 S.W. 992), Cleveland, etc., R. Co. v. Means, 59 Ind.App. 383 (104 N.E. 785), are fair samples. On analysis, these cases involve "attractive nuisances." But appellant does not claim to be, in strictness, within the...

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