Shea v. Concord & Montreal Railroad

Wallace, J. The deceased was a trespasser at the time of his injury in the defendants’ railway yard. There was no evidence tending to show that his injuries were wantonly inflicted, *363 or that any of the defendants’ employees knew of his presence at the time he was injured. The only question submitted to the jury was whether or not the railroad tracks at the place of the accident and prior thereto had been used to such an extent that the defendants’ employees, in the exercise of ordinary care, ought to have anticipated such use on this occasion and to have discovered and warned the deceased of his danger. The single question presented is whether there was sufficient evidence to warrant the submission of the case to the jury, or whether the motion for a nonsuit and a verdict for the defendants should have been granted. In Clark v. Manchester, 62 N. H. 577, Frost v. Railroad, 64 N. H. 220, and Buch v. Company, ante, p. 257, the doctrine was followed that a trespasser meeting with an injury by reason of the dangerous condition of the premises he is invading is not entitled to recover, on the ground that a landowner is under no duty to a mere trespasser to keep his premises safe, and is liable only for an injury wantonly inflicted, or for one arising from his failure to exercise due care after discovering the danger. But Felch v. Railroad, 66 N. H. 318, and Mitchell v. Railroad, 68 N. H. 96, proceed upon the idea that there is a broad difference between such a case and that of an injury caused to a trespasser by the active intervention of a party who is held liable not only for failing to exercise due care to avoid injuring him after discovering his presence, but for failing to do so when culpably ignorant of his dangerous situation. The evidence shows that the place of accident was at a point where there was no passageway of any kind where either people or carriages wTere accustomed to cross the railroad tracks or approach them. The cart-path and foot-path spoken of were north of the oil shed, while this point was south of it. There was evidence that the portion of the defendants’ yard adjoining this unoccupied field had been trespassed upon before the accident, that the trespassing was located at no particular place, but was of that general kind that may occur on the tracks of a railroad in a tovrn or city. It also appeared that the use of the field adjoining the railroad as a playground was confined chiefly to the portion north of the oil shed. It does not appear that there were any people frequenting the field or track at or near the time of the accident. There was nothing to show that the defendants ought to have observed special precautions at the place where the accident happened. The circumstances are entirely dissimilar from those in Mitchell v. Railroad, supra, where there wms a well defined path “ across the yard, which, with the defendants’ knowledge, their servants and people generally were accustomed to use as they had occasion.” There was no evidence tending to show7 that the defendants’ servants, in the ex *364 -■ercise of ordinary care, ought to have seen or to have anticipated •the presence of the deceased at the time and place of the accident, and taken precautions for his safety. Precaution is a duty only so far as there is reason for apprehension. They were not required to anticipate the presence of a chance or casual trespasser upon the tracks in their freight yard. There being no evidence from which a jury could properly find that the defendants neglected to perform any duty, the motion for a nonsuit and for a verdict for the defendants should have been granted. Exceptions sustained. Piice, J., did not sit: the others concurred.