Ward v. Southern P. Co.

• Decision Date: 12 March 1894
• Parties: WARD v. SOUTHERN PAC. CO.
• Court: Oregon Supreme Court

36 P. 166

25 Or. 433

WARD v. SOUTHERN PAC. CO.

Supreme Court of Oregon

March 12, 1894

Appeal from circuit court, Douglas county; J.C. Fullerton, Judge.

Action by Roland Ward against the Southern Pacific Company. From a judgment for plaintiff, defendant appeals. Reversed.

E.C. Bronaugh and W.D. Fenton, for appellant.

J.W Hamilton, for respondent.

LORD C.J.

The complaint alleges that, by the negligence of the defendant in the management of its locomotive engine, a son of the plaintiff, about six years of age, was run over and killed. The answer denies such alleged negligence, and sets up as a defense that the plaintiff and his son were contributorily negligent. The reply denies the new matter in the answer. The cause being thus at issue, a trial was had resulting in a verdict for the plaintiff, and from the judgment which followed this appeal was taken.

In the progress of the trial, it appears that, at the close of plaintiff's testimony, defendant interposed a motion for judgment of nonsuit, which the court overruled, and the defendant excepted. As the propriety of this ruling is questioned, our present inquiry is as to whether the testimony for the plaintiff is legally sufficient to warrant the verdict in his favor.

The record discloses that the testimony for the plaintiff, in substance, is that he is a farmer, and that Freddie Ward, the deceased, was his son, who was about six years of age; that the railroad track passes through a field of plaintiff's farm, within about 50 yards of his residence, which stands inside of an inclosed yard, and adjoining this yard is the barn lot, from which a gate opens into said field; that, on the afternoon of the day of the accident, plaintiff was engaged in hauling wood through his barn lot to the side of the railroad track, where he piled it; that shortly before four o'clock in the afternoon of said day which was the usual hour for the Southern Pacific train to pass his place in going to Roseburg, the plaintiff, having loaded his wagon said to his son, "Run and open the gate, so that I can get the load off before the train comes," which being done, he drove his team through the gate to the wood pile beside the track (the distance between the gate and wood pile being about 50 yards), and that the gate was left open by his direction; that before reaching the wood pile the plaintiff looked back, and, not seeing his son, supposed that he had returned to the barn; that, the last time plaintiff saw his son, he was at the gate, and that about 20 minutes thereafter, but after the train had passed, some 5 or 10 minutes, Mrs. Clark found the dead body of the child, and gave the alarm, when the plaintiff ran to the spot, and saw the body of his son lying in the middle of the railroad track, with the shoulders about five or six inches from the rail, and the head dissevered from the body, lying outside of the rail near the wood pile, and some 30 feet from where the body lay; that from the time he last saw his boy, at the gate, until the body was found by Mrs. Clark, the plaintiff did not know where his son was, but supposed that he was at the house, though he did not tell him to go there, or "notice him after that;" and that the wood pile at which plaintiff was unloading his wagon when the train passed was about 70 feet long, 6 or 7 feet from the track, and 8 feet high. There was some evidence tending to show that school children and other persons sometimes used the railroad track as a footpath, but none showing that the company knew or had notice that the track was so used; and the plaintiff admitted that he had not seen any school children so using the track for about a year previous to the death of his son. It was also shown that the track was open and straight, from the direction from which the train came, for nearly half a mile before the place was reached where the child was found. This being, substantially, all the evidence for the plaintiff, the contention for the defendant is that such evidence wholly fails to prove the negligence alleged as a cause of action and that, therefore, the trial court erred in not granting the motion for a nonsuit. As argued, this contention involves two points: First, that the evidence totally fails to show that the injury and death of plaintiff's son were caused by the negligence of the defendant or its employes in the management of the train at the time of the accident; and, second, that, conceding the negligence of the defendant, the plaintiff's evidence shows that, in view of the circumstances, he was guilty of negligence contributing to produce the fatal occurrence, in leaving his son in such dangerous proximity to the railroad track.

As to the first point, it is put upon the ground that, as shown by the evidence, the company had the exclusive right of way where the accident occurred to the deceased, and hence that he was a trespasser upon its track, to whom the company owed no legal duty to keep a lookout, or guard him against danger. The evidence shows that the body was found, not at a public crossing, or where people habitually pass over the track, and are known to be in the habit of doing so by those operating the trains, but in a field through which the railroad passes, and over which the company had the sole right of way. Some persons or school children living in the vicinity of the railroad track occasionally used it as a footpath, but without the knowledge or permission of the company. It was a license of their own taking which they took cum periculo, or subject to its perils. "Persons," says Mr. Justice Nelson, "living in the vicinity of railroads, who use the tracks or the embankments, or the space between the tracks, as a footpath, are wrongdoers, unless permission is granted by the company so to use its tracks. Although pedestrians, or the public generally, travel over them without objection, people go there at their own risk, and, as said by the supreme court of Massachusetts, 'enjoy the license subject to the perils.' Gaynor v. Railroad Co., 100 Mass. 208." Grethen v. Railway Co., 22 F. 609. User of this sort will not establish a public way over the track, or relieve those so using it from the imputation of being trespassers. A railroad company has the right to the exclusive use of its track, unless a right of way or footpath over it has been acquired by its consent, express or implied, or a joint use has been reserved to the public, as at a public crossing. There is no doubt that if the company permitted the public, for a long time, to travel or habitually pass over its track at some given point, or use it as a footpath between different points, without objection or hindrance, its consent or acquiescence in such use might be presumed, and it would be bound to manage and run its trains with reference thereto. In such cases the company and the people have a common right or joint use in the track, as a public way, and the right of each must be regarded. But the mere fact that persons have frequently trespassed upon the track, and that the company has resorted to no means to stop such trespasses, does not amount to a permission or license to use the track as a footpath. There is nothing in the case at bar to indicate that the public have acquired any right to use the track as a footpath or highway, with the consent or by the acquiescence or sufferance of the company, at the place where the accident happened. Such being the case, the deceased was on the track at a place where the company had the sole right of way, without its consent or acquiescence; and, in legal contemplation, he was wrongfully there, and therefore must be regarded as a trespasser.

But conceding the fact that the deceased child was unlawfully upon the track, and a trespasser, it is insisted by counsel for the plaintiff that as the day was clear, and the track open and straight for nearly half a mile before the place was reached where the accident occurred, if the engineer of the company operating the train had kept such a vigilant outlook as the proper discharge of his duties required, he must have discovered the child in time to have stopped the train before reaching him, and his not doing so is negligence, and the proximate cause of the injury. In this view, the railroad company is bound to run its trains with reference to the probability of accident to trespassers on its tracks. This duty is founded upon the assumption that, although the defendant is not bound to exercise that degree of diligence and care for the safety of a person on its track at a place where there is no public crossing required as to passengers, yet, as the defendant employs a dangerous force in running its trains, it is bound at least to exercise ordinary care, when so employing it, so as to avoid injury to persons or property which may happen to be on its track; and if, by using such care, the accident would not have happened, the failure to use it, even though the injured party be a trespasser, is negligence which would render the defendant liable. This principle finds its illustration in Railroad Co. v. Sympkins, 54 Tex. 615, where the plaintiff lying in a state of insensibility on the railroad track, not at a public crossing, was run over by the cars, and seriously injured. The court,...