St. Louis & San Francisco Railroad Company v. Williams

• Decision Date: 27 February 1911
• Citation: 135 S.W. 804,98 Ark. 72
• Parties: ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. WILLIAMS
• Court: Arkansas Supreme Court

135 S.W. 804

98 Ark. 72

ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. WILLIAMS

Supreme Court of Arkansas

February 27, 1911

Appeal from Crawford Circuit Court; Jeptha H. Evans, Judge reversed.

Judgment reversed and dismissed.

W. F Evans and B. R. Davidson, for appellant.

1. A railroad company's use of its right of way at all places other than public crossings is exclusive at all times and for all purposes. 49 Ark. 257, 263; 2 Am. & Eng. R. Cas. 4-6; 76 Am. St. Rep. 163; 20 S.W. 380; 7 F. 78; 45 Am. Rep. 365; 8 Am. & Eng. R. Cas. 217; 70 A. 826.

2. A railroad company owes no duty to a trespasser on its track and right of way except not to wantonly injure him after his presence has been discovered. 123 S.W. 1182; 69 Ark. 380; 64 Ark. 364; 62 Ark. 235. An infant may trespass as well as an adult, but the company owes to the infant no greater duty than it does to an adult. 36 Ark. 39; 15 S.W. 1057; 110 S.W 329; 111 S.W. 712; 116 S.W. 557; 104 N.W. 827; 47 F. 689; 143 F. 260; 7 N.E. 866. A child on a railroad track is a trespasser, though not old enough to be guilty of contributory negligence. 37 S.E. 794; 81 S.W. 657; 4 A. 106; 44 A. 809; 70 A. 826. The "turn table case" is an exception to the rule that the landowner owes no duty to an infant trespasser other than that owed to an adult, but this exception does not extend to the use of torpedoes by railroads in the operation of their trains. In their use there must be proof that they were negligently placed, or a state of facts proved from which negligence might reasonably be inferred. 32 Am. & Eng. R. Cas. 37; 44 Id. 647; 51 A. 1070; 15 Id. 414, 19 S.C. 20; 70 S.W. 830.

3. The causal connection having been broken, the injury to the plaintiff was not the proximate result of the placing of the torpedo on the track. 87 Ark. 576; 21 Am. & Eng. R. Cas. (N. S.) 646. Appellant had the right to presume that appellee's parents would discharge their duty by preventing their children from removing the torpedoes from the rail, and by warning them of their dangerous nature. 2 Am. & Eng. R. Cas. 4, 6; Id. 7; 44 A. 809; 70 A. 826; 110 S.W. 329; 111 S.W. 712; 116 S.W. 557. Their act in permitting the child to go unwarned broke the causal connection, as did also the act of the other boy in exploding the torpedo. 124 F. 113, 119, 120, and authorities cited; 43 A. 539; 113 Mass. 507.

4. The torpedo, under the allegations and evidence, was properly placed, and there was no allegation nor proof that it was an improper instrument, or that it was improper to use it on the rails of appellant at the place where it was used. Plaintiff had no right to search for imaginary grounds not contained in the complaint as a basis for recovery, and the court will not treat it as amended. 70 Ark. 232.

Sam R. Chew, for appellee.

The torpedo was placed, as the record shows, at a place where appellant knew that children were accustomed to assemble and play daily; and it knew also that these torpedoes were attractive to children and likely to be picked up by them, and that they were likely thereby to be injured. Persons using explosives are held to a high degree of care and caution, and they will be held to answer in damages for injuries resulting from the wrongful or careless handling of the same, where the injuries might reasonably be expected to flow from such wrongful or careless handling. 1 Thompson on Neg. §§ 758, 759; Shearman & Redfield, Negligence, § 688; 45 O. St. 11; 87 Ark. 580.

2. The proximate cause of the injury was the placing and leaving the torpedo where it could be picked up by a child or other irresponsible person. Its being carried away and its ultimate explosion was what might have been reasonably expected. "Where the injury proceeds from two causes operating together, the party putting in motion one of them is liable the same as though it was the sole cause." Bishop, Noncontract Law, § 39; Id. § 45; 108 P. 140, 27 L. R. A. (N. S.) 884; 73 Ark. 112; 89 Ark. 581; 129 S.W. 78.

OPINION

MCCULLOCH, C. J.

The plaintiff, J. C. Williams, then 11 years of age, was injured by the explosion of a torpedo picked up on the railroad track of defendant by his younger brother, Ellis Williams, and sues to recover damages. The boys lived with their parents a short distance from the railroad track in the city of Fayetteville, Ark. They saw the brakeman of a train place the torpedo on the track, and the younger one went out on the track, and picked it up, and carried it to plaintiff, requesting him to "mash it," which he proceeded to do, placing it on a rock and striking it with an axe. Some of the particles struck plaintiff in the eye and destroyed the sight.

There is no dispute as to the material facts. The defendant operates a branch line, known as the St. Paul branch, which runs east from the main line at Fayette Junction, about two miles south of the passenger station at Fayetteville. Another branch, called the O. & C., runs west, leaving the main line a short distance south of the station. The trains from these branches come in on the main track to reach the Fayetteville station, which is used by all of defendant's trains on the main line as well as on the branch lines. The track between Fayette Junction and the Fayetteville station has frequent curves, and there are obstructions which prevent a view up and down the track for any considerable distance.

When the trains come in from the branch lines, while using the main line at the station for discharging passengers, baggage, express, etc., it is necessary to protect them by the use of torpedoes from other trains likely to come in. The undisputed evidence shows that this has been the custom for many years, and that it is considered necessary by those who have been operating trains there. It is explained that where a Drakeman gets off to protect a train with a flag it is necessary to use a torpedo for protection while he goes back to his train.

The track near the place where the plaintiff was injured was on a high dump, and is curved, so that it has always been found necessary to place a torpedo at that place. It is not a crossing, but there was testimony tending to show that people walk the track a good deal along there, and that children play on or about the track.

On the occasion in question the mixed train from the St. Paul branch came in, being due at 3:45 P. M., and when it came up the main line Raedles, a brakeman, got off and placed a torpedo on the track as usual, leaving it there when he was called to his train as a signal to the other incoming trains. A train from the O. & C. branch was due at 3:55, and another train on the main line was due from the south at 4:10 P. M. It was always considered necessary to put a torpedo on the track at that place to protect the St. Paul train from those trains while it was discharging passengers, baggage, etc., at the station and getting back to the switch. Raedles used a torpedo of approved pattern commonly in use. It had a lead strip attached to it, by which it was fastened to the rail so that it would be exploded by the wheels of a passing train.

The boys saw Raedles put the torpedo on the track, and in a short time thereafter, about fifteen minutes, the younger boy, Ellis, went over and picked it up and carried it to his brother, who exploded it, as already stated. The injury occurred in a very unusual and unexpected manner. Witnesses stated that torpedoes had been placed along there for ten years or longer, and that an accident had never before happened on that account. The use of torpedoes in that way is shown to be customary in railroading, yet experienced railroad men testified that they had never heard of any one being injured as a result of that practice.

We need not spend any time in discussing the question of contributory negligence, or whether the negligence of defendant's servants, if there was any negligence, was the proximate cause of the injury. The question of negligence of the plaintiff in exploding the torpedo was properly submitted to the jury, and, considering the plaintiff's age and inexperience, we think the jury were justified in finding that he was not guilty of negligence. In the case of Pittsburg Reduction Co. v. Horton, 87 Ark. 576, 113 S.W. 647, the court distinctly recognized the principle that negligence in unnecessarily leaving an explosive exposed so that children could have access to it would be the proximate cause of an injury resulting therefrom under circumstances similar to the facts of this case; citing Harriman v. Pittsburgh, C. & St. L. R. Co., 45 Ohio St. 11, 12, 12 N.E. 451 N.E. 451. The court there held that where the explosive was picked up by a child incapable of committing an act of negligence, and he immediately carried it to his companion who exploded it, the causal connection with the original act of negligence in leaving the explosive exposed was not broken by an intervening act of negligence, and it was a result to be reasonably anticipated, so as to make the injury the proximate result of the original act of negligence.

The real question with which we must deal in this case is whether or not there is any evidence of negligence on the part of defendant's servants in leaving the torpedo on the track. Did they violate any duty which they owed to children who might come on the track?

Cases may readily be found where it is held to be negligence to leave explosives or other dangerous substances exposed so that injury may result therefrom. These are cases, however where the method of using the substance is found to be negligent, or where there is negligence in unnecessarily leaving the substance exposed. We are not aware that any court has ever held that the necessary use in a careful manner of a dangerous substance in the operation of...