Atchison, Topeka & Santa Fé Railroad v. Todd

The opinion of the court was delivered by Johnston, J.: William H. Todd was killed while sitting under a car in the yards of the railroad company at Wichita. These yards are about two miles long, and over 300 yards wide, and, at the point where the fatality occurred, there was no public thoroughfare or street crossing, nor was there any inducement or implied invitation held out to enter upon the yards. Nothing about the cars was especially attractive to children, and there was nothing to lead the employés of the company to anticipate that persons would be sitting under the cars in the yard. While a switch engine was moving cars about the yard, it backed against the one under which Todd was sitting, and in some way the wheels passed over his body [558] and killed him. He was not seen by any of the employés of the company, and, what is more, the men who controlled the movements of the engine could not by any means have discovered his perilous position unless they had left the engine to look for him. Under the findings of the jury, no ground is seen upon which to base a recovery. Todd had gone upon the tracks without invitation or right, and was a conscious trespasser when the accident occurred. He was in a place where the company had the exclusive use of the tracks, and where there was no reason to anticipate that intruders or trespassers would be concealed. Under such circumstances, there was no duty on the part of the company to foresee his wrongful presence, nor did any duty arise in his favor until his presence was discovered. As a general rule, before the company can be made liable for injury to trespassers, it must appear that the proximate cause of the injury was the failure of the company to use reasonable care to avoid injury to them, upon becoming aware of the peril to which they were exposed. Where those in charge of the train have reason to anticipate that persons may be upon the tracks, a duty may arise to keep a lookout for them, and if through their recklessness or carelessness injury is inflicted, when the exercise of ordinary care would have discovered the danger and averted the accident, a liability in some cases may arise. In this case, however, there was no reason to anticipate the presence of Todd under the car, and the exercise of ordinary care on the part of those in charge of the engine in looking along the track would not have discovered his presence. The only duty which the company owed to him was not to recklessly or wantonly run over him after they discovered him in a place of danger. (K. P. Rly. Co. v. Whipple, 39 Kas. 532.) The undisputed evidence and the findings show that Todd was not recklessly or wantonly injured, and as those in charge of the engine did not know and had no reason to know of the presence of Todd under the car, how can any negligence be imputed to them? There can be no liability against the company unless it failed in its duty [559] toward Todd, and under the findings it is difficult to discover any breach of duty or negligence which can be said to have caused the injury. (A. T. & S. F. Rld. Co. v. Plaskett, 47 Kas. 107, and cases cited.) We need not rest the decision of the case upon the care or negligence of the company, however, as it is clearly established by the special findings that the boy himself was guilty of contributory negligence. “ It is now the settled rule in this and other states, where the plaintiff seeks to recover for injuries on the ground of the defendant’s negligence, that, if the ordinary negligence of the plaintiff directly or proximately contributed to the injury, he cannot recover unless the injury was intentionally and wantonly caused by the defendant.” (Tennis v. Rapid Transit Rly. Co., 45 Kas. 503.) It is true that the deceased was a child, and that the law does not require the same degree of care on the part of a child as of a person of mature years, but even a child must exercise care proportionate to his age and capacity; and whether he does use such care or not is ordinarily a question for the jury to determine. In every such case the question of whether there is contributory negligence is to be determined from the age and intelligence of the child, anti his ability to understand the dangers of the place where the injury occurs. A child is bound to use such reasonable care as one of his age and mental capacity is capable of using, and his failure to do so is negligence, which will defeat a recovery for any injury which he may sustain. The findings of the jury leave no doubt in this case that the deceased had sufficient capacity to understand the danger to which he was exposed. They show that he was a bright, intelligent boy, between 9 and 10 years of age, who had been about railroad yards, and who knew and appreciated the danger of going under the cars. He had been frequently cautioned before the accident of the danger there was in going under the cars, knew that it was wrong to go there, and understood the probable results of being under a car if the [560] engine should be backed against it while he was there. The findings of the jury satisfactorily show that he understood and appreciated the danger to which he was exposed, and therefore' any negligence on his part which contributed directly to his injury defeats a recovery therefor. (Dowling v. Allen, 88 Mo. 293; Cauley v. Railway Co., 98 Pa. St. 498; Railway Co. v. Smith, 46 Mich. 504; Twist v. W. & St. P. Rly. Co., 37 Am. & Eng. Rld. Cas. 336; Wendell v. Railroad Co., 91 N. Y. 420; Railroad Co. v. McMulle, 19 Atl. Rep. 28; Mitchell v. Railroad Co., 19 id. 28; Pettit v. Railway Co., 59 N. W. Rep. 1082.) The facts found by the jury show that there was no culpable negligence on the part of the company, and that the deceased was a conscious trespasser, capable of understanding the dangers of the position which he occupied, and therefore did not exercise the ordinary care which the law requires. It follows that the judgment must be reversed, and the cause remanded, with instructions to enter judgment upon the findings in favor of the plaintiff in error. All the Justices concurring.