Schreiner v. Great N. Ry. Co.

• Decision Date: 16 May 1902
• Citation: 86 Minn. 245,90 N.W. 400
• Parties: SCHREINER v. GREAT NORTHERN RY. CO.
• Court: Minnesota Supreme Court

86 Minn. 245

90 N.W. 400

SCHREINER

v.GREAT NORTHERN RY. CO.

Supreme Court of Minnesota.

May 16, 1902.

Appeal from district court, Wright county; A. E. Giddings, Judge.

Action by Michael Schreiner against the Great Northern Railway Company. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

Syllabus by the Court

1. Persons having no invitation to go upon railway tracks, but who walk thereon for their own convenience, are mere licensees, taking existing conditions as they find them, and cannot require the railroad company to protect them from dangers which are as apparent and open to their own observation as to the company.

2. Where a licensee walking upon railroad tracks was approached by a train, and stepped therefrom to avoid collision, but was pushed upon the rails by a straying cow pasturing on the right of way, the failure of the company to build the statutory fences cannot be held the proximate cause of the accident, for which it would be liable to answer in damages. A. C. Middelstadt, for appellant.

W. E. Dodge and E. L. Sutton, for respondent.

LOVELY, J.

Appeal from an order sustaining a general demurrer to a complaint. The facts set forth therein may be briefly stated as follows: Defendant operated its road between Waverly and Melrose, in this state. It had at all times failed to comply with its statutory duty to fence its tracks between these places. Plaintiff was injured while walking upon defendant's track under what he claims to have been an implied invitation. His pleading in this respect substantially alleges that the public have used the railroad right of way and its roadbed ever since its construction to walk thereon, and that it has been the usual custom of the people who live at Melrose, Waverly, and the surrounding country, for their own convenience and benefit, to make such use of the tracks daily for 25 years, with the knowledge of defendant, and without objection or interference. On the occasion of the accident plaintiff was walking upon the tracks between the places referred to. A freight train approached from the opposite direction, running at the rate of 35 miles an hour. At the same time cattle were pasturing on the right of way. Plaintiff stepped from the rails to avoid the train, and while it was passing a cow ran against him, threw him upon the ground, pushed one of his arms upon the rails, whereby he received severe injuries, for which he seeks recovery. The construction of the complaint most favorable to plaintiff is that he was on the railway tracks in pursuance of a usage by the public, which was permitted without objection from defendant. It does not go further than this. Plaintiff was not passing over the tracks at a crossing which had been adopted or recognized by the railway company, but was simply making use of its tracks to walk thereon from one place to another, which is a practice adopted by many persons for pleasure or convenience. That such a user is to a certain extent common is well known, but is unquestionably dangerous, and ordinarily regarded as an intrusion upon the legal rights of the railroads, who maintain their tracks and right of way, except at stations and crossings, for the purpose solely of operating their trains thereon. It is not easy to see how such a user by the public could be wholly prevented without force, which would be attended with difficulties that might not be overcome without the imposition of unnecessary burdens upon the railway company, and it may well be doubted whether, upon the allegations of the complaint, the plaintiff was not a trespasser upon the defendant's property at the time he sustained his injury; but it is not necessary to so hold in this case. Conceding, however, that plaintiff had defendant's permission, resting upon the usage of the public, to walk upon its tracks, in availing himself of that...