Tomas v. Cincinnati, N. O. & T. P. Ry.

[161] Opinion op the Court by Judge Hobson Affirming. Appellant was walking beside appellee’s railroad track and on its right of way through the country. She was not on or using any crossing. A passing freight train, going at a high rate of speed, came around a curve in the track at that point, when a coal gate, a wooden structure of slats used in the tender of the locomotive to keep the coal back, and which had been laid on top of the coal temporarily by the fireman, toppled off and struck appellant, inflicting painful injuries, for which she has sued. Her presence on the track was unknown to appellee or those in charge of the train. At the close of her evidence the court peremptorily directed a verdict and judgment for appellee. Appellant relies on Conley’s Adm’r v. C., N. O. & T. P. Ry. Co., 89 Ky. 402, 12 S. W. 764, 11 Ky. Law Rep. 602. In that case a cut of freight ears was turned loose down the track on a dark night, without light or person in charge to give warning of its approach, when it ran over Conley, in the town of Burgin. Conley was held to be technically a trespasser, but was at a point in a town where people might reasonably be expected to be found upon the railroad track at any time. The court held that the act was so reckless and wanton, and in such utter disregard of human life as to smack of savagery. It was likened to one’s turning loose a dangerous and vicious animal on his own premises, where technical trespassers were known to be or reasonably expected. The company was held liable. Are the cases parallel ? . The Conley case might be likened to the old spring [162] gun oases. No one has the right to kill people merely because they are trespassers. To turn loose a rapidly moving train of cars at nighttime, without light, warning, or control, and under conditions where it is reasonably certian they will run down, persons on the track, trespassers and all others, would be highly anti-social and utterly devoid of thought for human life. In the case at bar the act was not necessarily dangerous. It may have been careless, in a sense, such that, had the injury been inflicted upon a person to whom the company owed an active duty, it would have been responsible for.- But the gate was not likely to fall off the tender in the usual course of things. As placed it was in no sense reckless, or a wanton disregard of human life. It was about as innocent as any careless act could be. Unless, therefore, the same liability is to be imposed upon' railroads with regard to trespassers, and employes and passengers, putting all on substantially the same footing as respects the company’s duty toward them, the actual difference in their relation must form the distinction in the company’s duty toward them. This actual difference is, passengers are received at known- times, and expected places. They can be provided for, and must be. Employes have designated places to work, and are furnished implements of the company’s selection with which to do their work. They perform their duties at times, in places, with appliances, and under rules all governed by the company. Their safety can be reasonably provided for. But trespassers come and go at all times, at all places, ungoverned by rules, and unmindful of duties. The company, not knowing when and where to look for them, is unable to guard against every kind of injury to them. Many kinds of danger to them, the [163] most usual, and at the most usual places of resort by them, must be looked out for, and the trespassers protected from injury, if then possible, as we have repeatedly held. If they are seen in time to avert their injury, they must not be hurt, is the universal rule. Manifestly the least duty is owing, to them by the railroad company, not because their lives are regarded as of less value, nor 'because they forfeit either life or limb by their heedless act. The distinctions are based upon just grounds — are consonant with the best judicial thought, and the soundest public policy. If, on the other hand, the railroad company were required at its peril to keep a constant lookout for trespassers on its right of way along its whole route at all seasons and hours, and in addition equip and manage its trains and build its track and trestles .with the idea of responsibility to them, no longer would there be any distinction between the duty owed those rightfully and those wrongfully using the railroads tracks and property. A too tender regard for the latter would be apt to work more injustice than otherwise. It would, too, encourage a species of lawlessness and recklessness in a class already too prone to take all kind of chances. Negligence is the antithesis of duty. Where there is no duty, there cannot be negligence. As appellee was not under the duty to anticipate appellant’s presence at the point where she was then hurt, and as it did not in fact know of her presence, it was not required to make its trains safe as to her. The fact that they were unsafe, but not recklessly or wantonly so, was not, therefore, a breach of duty to her, and is not actionable negligenee. The judgment is affirmed.