Perego v. Lake Shore & Michigan Southern Railway Co.

Grant, J. {after stating the facts). The defendant had performed its entire duty to prevent parties crossing its yard and grounds at this place. It had posted warning notices, and had frequently notified travelers against crossing there. It had provided a safe approach from its tracks to its depot, and it was the legal duty of passengers to go to and depart from trains in the way provided. Many trains were going in and out daily, both passenger and freight, and switching of cars was continually going on. The danger was apparent. A traveler choosing to depart [230] from the safe way provided and taking a dangerous way, one where he had no right to go, assumes all the risks and dangers incident to the work to be done in the ordinary way. Only in case of gross negligence can the defendant be held liable for injury to one departing from the way provided into one not provided and where he was prohibited from going. Plaintiff’s counsel, however, strenuously insists that there was evidence of gross negligence. This is based solely upon the fact that the fireman caught a glimpse of the boy just as he emerged from behind the box cars, and was almost upon the track, and did not notify the engineer. It is quite probable that if the boy had not stopped and turned around to escape, in doing which he fell, but had continued his running, he would have crossed in safety. Whether the boy saw the approaching tender and stopped or whether he stopped in response to the calls of his uncle and brother is a matter of conjecture. The fireman testified that boys had frequently run in front of approaching trains before. There is no evidence that any like accident had ever occurred. We cannot hold that the fireman was guilty of grossly inhuman conduct in not turning and notifying the engineer that a boy was trying to cross the track. It is no uncommon thing for boys to run across tracks in front of approaching trains, and the evidence shows that it was frequently done by boys at this place. If the engineers were obliged to stop their trains every time a boy undertook to cross in front of them, it would seriously interfere with the running of trains. The bell on the engine was ringing, was heard by others, and the fireman had the right to presume that the boy heard it, and believed that he could safely cross as also did the fireman. Under these circumstances, the defendant cannot be held guilty of gross negligence either in the failure of the fireman to notify the engineer or the failure to keep a person upon the rear of the tender to notify parties choosing to cross there. Defendant owed no duty to travelers to station a man at this place to prevent [231] them from trespassing, or to station a man upon the rear of backing trains to warn them of their approach. It was held in Trudell v. Railway Co., 126 Mich. 73 (85 N. W. 250, 53 L. R. A. 271), that a'railroad company was not guilty of gross negligence in running down a boy seven years and four months old upon its right of way, from the fact that he stood on the track in full view of those in charge of the approaching engine for some two minutes before being struck, since the company’s agents, if they saw the boy, were justified in believing that he would step off the track in time to avoid the injury. The same piinciple controls this case. There is no difference in principle between a boy standing upon the track and one attempting to run across in front of a train. We cannot hold that this fireman recklessly caused this boy to be run over on the ground that he saw him in imminent danger. In the Trudell Case the boy was held guilty of contributory negligence. If the boy in that case was guilty of contributory negligence, equally so was he in this case. He was a trespasser, and for some reason left the company of his guardians and rushed into danger which was apparent to every one in the vicinity. Judgment reversed, and no new trial ordered. Blair, C. J., and Montgomery, McAlvay, and Brooke, JJ., concurred.