Swartwood's Gdn. v. L. & N. R. R.

— 250 — Opinion op the Court by Chief Justice O’Rear— Affirming. The question for decision in this case is whether railroad companies whose lines traverse cities and towns, or other populous communities, must maintain a lookout for children who are in the habit of jumping on and off the cars while in motion, although the railroad people did not know the particular child who might be injured by such practice was in fact upon its cars, and to provide against such injuries. The petition in this case, which was held had on demurrer, alleged that the infant plaintiff, aged eight years, was attracted to appellee’s trains in the city of Covington by other children jumping on and off the cars while in motion, stealing rides, and that the defendants were aware of the practices of such children at that point; that a watchman of the appellees, whose duty it was to lower and raise a nearby gate across a street railroad intersection, also knew of the practice of the children, hut on the occasion of the plaintiff’s injury took no precaution to learn whether he was on the train or not; that plaintiff, following the practice of the other children, and in attempting to jump on one of the moving cars, slipped and fell beneath it. thereby having a foot cut off. It is not charged that the defendants knew that plaintiff was attempting to make his perilous try at the time he did it, or that defendants neglected to use any precaution to save him- from injury after discovering his peril. So the question comes down to the point stated in the beginning of this opinion. It is a fact of which we all know that railroads traverse streets and lots in our cities on their grade; that there is little or no — 251 — protection against trespassing upon the railroad tracks; that children and others do so in spite of the well-known dangers of the practice. The Legislature has not taken action to require the railroad companies •or the cities to maintain harriers against such trespassers. The habit of such trespassing, including, perhaps, the childish tendency and practice of clambering onto the moving cars to get a short free ride, is well known also to everybody, including, of course, the railroad people. If the operators of the train know of the actual presence of such trespassers, for such they are, they are required by the humaneness of the law to not injure them if with the means at their command they can avoid doing so. Nor will the inconvenience and annoyance entailed be counted. The courts have never gone further than that. The Legislature may, but it has not. Any other rule, particularly the one contended for by appellant, would require practically that such railroads should police all their lines and vehicles in such cities and towns in anticipation of the dangers to thoughtless and heedless persons-. Because of their inexperience and childish instincts, infants of tender years are not always held to the same strict accountability as adults in such matters. The latter are charged with their own negligence in wilfully going into such perilous places without right to do so; but, even if they were not negligent, as for example if they were insane, the rule would not be different. So the rule is not based entirely upon the negligence or even wrong of the so-called trespasser. Rather the reason a recovery is denied is because the railroad company has not been legally negligent of any duty it owed to such person. Without legal duty there cannot be actionable negligence. The duty is not owing because, as such- per — 252 — son had not the right to he at the place, his presence need not be expected, and need not therefore he provided against. It is true it is known that such trespasses are probable; hut they are sporadic. The railroads are required to serve the public by running their trains over their tracks. They are held to a rather strict accountability in many matters connected therewith. To require this additional duty would he to put railroad operations beneath the rights of trespassers upon the railway tracks. It would he hard, if not impracticable, to draw a line between wilful trespassers and those of other degrees, or between those who trespass in towns and those who trespass in the country. Both quarters are alike subject to the practice, though with varying frequency. Hence no distinction is recognized as existing with respect to such. The courts have gone as far as seems allowable within the principles of the common law, in applying the doctrine of liability to technical trespassers; where, for example, the public uses a railroad as a street or passway for such time and with such frequency as to show with reasonable certainty that they are present at all times, the railroad company by its acquiescence seemingly assenting to and inviting such use, the traveler is not deemed a trespasser, or, if he is, the company is charged with notice of the fact of his presence. It may be thought harsh and arbitrary to draw a line between such and children who are allowed to habitually trespass on the moving cars. But the line must of necessity be drawn somewhere. And, where the gradation becomes shadowy and indistinct, it may appear that the .line is drawn arbitrarily. But it is not so in this instance. A very practical differentiation exists logically. The public — which, of course, includes everybody — may — 253 — obtain an easement in land by prescription. The particular land thereby is dedicated to the public use. As railroads do run upon streets of cities, it is not inconsistent that streets may be opened up along the railroad track. If the railroad, in fact, so dedicates its track in a city or allows it to be so used for such a length of time as that the public right attaches as if there had been such dedication, then the public are there as a matter of right; or, at least, the railroad, because of its acquiescence and seeming invitation, will not be heard to deny it Its duty in that event is to maintain a lookout for such persons, knowing they are probably present; and to take precautions against injuring them. But this rule of presumptive dedication does not apply as to sparsely settled sections, or where the use is comparatively infrequent, and without semblance of an assertion of a public right. These rules obtain without any respect to the ages or mental conditions of those using such ways. Now as to the cars, there is no such thing as the public’s acquiring a right to use them by prescription. There is no precedent for such claim, and no principle in law analogous to it. All who venture unbidden by the company and unknown to it upon its trains do so at their own peril, as they can have no right, and the company therefore owes them no duty, in such case. This rule also applies from the very necessity of the matter, without respect to the age or condition of the trespasser, for the court must deal with the question first of legal duty, not compassionable innocence. CoRinsel for appellant cites and relies upon Louisville & Nashville Railroad Company v. Popp, 96 Ky. 103, 27 S. W. 992, 16 Ky. Law Rep. 369; Bransom’s Adm’r v. Labrot, 81 Ky. 638, 5 Ky. Law Rep. 827, 50 Am. Rep. 193, and a line of cases known as the — 254 — “Turntable Cases.” In L. & N. R. R. Co. v. Popp, supra, the injured child was known to be on the car by the trainmen when they bumped other cars against it so violently and negligently as to throw the plaintiff off and hurt him. The principle on which the recovery was allowed in that case is one firmly fixed, namely, the known presence of a trespasser imposes the duty on the trainmen to use care not to injure him. They have the right to eject him because he is a trespasser, but not to kill or maim him. Bransom V. Labrot, supra, rests on the same principle as the turntable cases, namely, the negligent leaving upon one’s lands' unguarded dangerous contrivances attractive to children, whereby they are lured onto the real property of the negligent owner and sustain injury. But that principle has not a place here. The cars were not left in unguarded lots, but were being-used in the only way the conditions permitted them to be used at the time and place. So far we have discussed this ease omitting to mention another allegation of the petition which appellant seems to place some stress upon supporting a right to recover in this action; that is, it is alleged that on an open lot owned by defendants adjacent to their track where the injury occurred defendants had placed a pile of sand and left it unguarded,which was attractive to children, and did attract them and the plaintiff to that point to play; that whilst they were there the train came along, when plaintiff left the sand pile, and attempted to board the ears. The allegation as to the sand is wholly redundant. The sand had no connection, with the injury, and was not a proximate cause of it. If the plaintiff had been injured by the sand, or by rolling or slipping from it under the train, — 255 — and thereby got hurt., a different question would be , presented. But such was not the fact We are of the opinion that the ruling on the demurrer was without error; and the judgment must be affirmed.