Risbridger v. Michigan Central Railroad

McAlvay, J. Plaintiff, as administratrix, brought suit against defendant to recover damages on account of injuries to her husband which resulted in death, claimed to have been caused by the negligence of defendant. Upon the trial, when plaintiff rested her case, the court, upon a motion to that effect made by defendant’s counsel, directed a verdict in favor of defendant and against the plaintiff, upon which a judgment in due form was duly entered. Plaintiff brings error. The material assignments of error necessary to be considered relate to the action of the trial court in directing a verdict for defendant. In reviewing a judgment on a verdict directed for defendant, this court considers the testimony in the light most favorable to the plaintiff. The case made by plaintiff tended to show the following facts: The injury occurred in the city of Jackson, where at the time plaintiff’s decedent was an employee of — 674 — defendant, and had been so engaged for a week and a half as a car repairer in its junction shops in said city. The plaintiff’s decedent, with his family, lived on High street, in the southwest part of the city. The junction shops were located northeasterly from said street at a distance of more than one mile, and between High street and the shops the right, of way and tracks of defendant’s railroad extend continuously. At these shops defendant employed a large force of men. Many of these workmen, who lived in the southwestern part, of the city, had been in the habit for many years of going to their work in the morning and returning at night along defendant’s track. It was a good smooth footpath all the way, and where it crossed the river the bridge was covered over solid. Plaintiff’s decedent, also, during the time of his employment, went to and from his work along these tracks of the company, having been accompanied the first two mornings by an old employee of defendant, who was his next neighbor. Many people not in defendant’s employment also frequented these tracks, going back and forth along them on foot. Such use of these tracks by workmen and others was well known by the employees of the company and the crew of the train which struck and killed Mr. Risbridger. The deceased was 53 years of age, in good health, and of good habits. He had no experience in railroad work prior to this employment. This accident occurred between 5 and 6 o'clock in the morning of November 16, 1910, when the deceased and others of defendant’s employees at the junction shops were, on their way to their work walking along these tracks. There were no eyewitnesses to the accident. Decedent's body was found along defendant’s right of way about 75 feet northeasterly' from Belden street. He had left the house to go to his work about 5 o’clock that morning, which was dark and foggy, and had — 675 — arrived at the place where he was killed before daylight. On that morning a gravel train, consisting of a very powerful locomotive and tender, 75 empty flat cars, and a caboose, of a total length of more than 3,000 feet, started from the Junction to go to Colon, a distance of 55 miles, on the Air Line Division of defendant’s road. The engine which pulled this train was backing up with the tender piled high with coal. Proceeding westerly in this manner, the back end of the tender was the front end of the train. It is admitted that there was no headlight upon the back end of this tender as it proceeded. On the part of plaintiff, testimony was introduced tending to show that there was no light of any kind upon the rear end of the tender, and that this engine did not whistle or ring its bell. The crew of this train consisted of a conductor, who was riding in the engine on the fireman’s side, the engineer and fireman, who were also in the locomotive cab, the head brakeman, who was stationed on top of the coal on the tender for the purpose of exchanging signals with the rear brakeman by means of his lantern, and to know that the train was all right, and the second brakeman, who was back toward the rear of the train. There are two tracks on this right of way, running parallel with each other, which are used as double tracks. The south track belonged to the Lake Shore & Michigan Southern Railway Company, and the north track, being the one upon which Risbridger was claimed to have been killed, belonged to the defendant. In the operation of the road all trains moving to the east take the south track, and all trains moving to the west take the north track. Deceased was found while it was still dark by Alfred De Fresna, a switchman in defendant’s employ, on his way to work. He was lying with his head near the south rail of the west-bound track, his legs extending diagonally towards the east — 676 — track. His hat and dinner pail were on the ground near him. One foot was cut off between the knee and the ankle, entirely separated. Another man named Kimball, also employed by defendant, arrived at this place about the same time. These men undertook to do something for deceased and found that he was still alive. He revived when moved slightly, and said only a few words about being cold and wanting his hat, and then expired. De Fresna, as soon as he arrived there, ran to the signal tower, which was about a block northeasterly from the place where the body was found, for the purpose of having the towerman telephone for an ambulance, which he did, and the ambulance arrived soon after. None of the crew of this gravel train saw any one on the track that morning, or knew that the train had struck a man, until they arrived at Colon, their destination, when the conductor received such information by telegram from the superintendent. There was testimony in the case presented by plaintiff tending to show that there was considerable blood found on the forenoon of the day on which the accident occurred on the ties and south rail of the defendant’s track at the place where the accident occurred. It also appears without dispute that, at the same time this gravel train going west passed the place where the accident occurred, a freight train passed going east toward Jackson on the south track. There is no dispute in this record but that along these tracks the entire distance down through this railway yard the employees of defendant and all persons who desired had for many years used these tracks on their way to their work in defendant’s junction shops, or wherever they might be going, as a footpath, and this, was well known to the employees of defendant who operated trains over the tracks. The errors assigned by appellant which we will con — 677 — sider relate to the charge of the court as given to the jury in granting defendant’s motion to direct a verdict, which was to the effect that defendant owed no duty toward plaintiff’s decedent, because he was a trespasser walking along the tracks of defendant’s road; that he assumed all risks in using such tracks as a way to walk upon for his own convenience or purposes, his being upon the track not having been discovered at the time by the employees of defendant. Taking this case made by plaintiff as epitomized, it must be admitted that such a case was presented as entitled plaintiff to have it submitted to the jury, unless, taking the facts as true, we find that no recovery could be had by reason of some well-settled rule of law. We find from the facts, stated that for many years the employees of defendant, the employees of others along this track, and citizens had used these tracks as a footpath going to and from their work, or for their personal convenience. The record is clear that this was known to defendant’s employees. The crew who operated the gravel train in question were acquainted with the fact that such a custom existed. It follows that defendant company must be charged with knowledge of such a custom. This custom had grown up in a thickly populated city of considerable size. These tracks had become a footpath for the general public, which use had continued for years with the knowledge of defendant, without even posting notices prohibiting it. The inference follows that it consented to such use. Under these circumstances, it would seem that there should rest upon defendant some duty, at least of reasonable care, owed by it toward these people whom it had permitted to make such use of its tracks. When this accident occurred, defendant must be held to have expected that the tracks were being used, as they had been used for years, by individuals on their way to — 678 — work, or about their business. It would seem that the law should impose a duty upon defendant to use reasonable care in operating trains along these tracks in the darkness on that morning, where it would be reasonably expected persons were using them for a footpath. The rule laid down by the trial court is that plaintiff’s decedent on these tracks, being a trespasser, must take his chances; that defendant owed him no duty of care whatever. Admitting that such a rule is applicable in some cases, under the circumstances of this case -it appears, to say the least, to be extremely harsh. It is admitted that there was no headlight on this train. There is testimony tending to show that there was no light of any kind upon the rear of this tender, which was the front end of the train. There was no lookout, and, had there been one, there was not sufficient light’to show the tracks ahead of the train. There is also evidence tending to show that no whistle was blown or bell rung. It is contended by defendant that the evidence shows there was an ordinary hand lantern on the end of the tender and that the whistle was sounded and the bell rung. These were questions of fact for the jury, if material. The speed of the train was from 9 to 15 miles an hour. The city ordinance prohibited a greater speed than 6 miles an hour. The exact question involved in the instant case is one of first intention in this court. We' find, however, that there are authorities which hold that, under facts similar to those presented here, persons so using the track of a railroad company as a footpath are regarded as licensees, and that trains at such places must be operated with this knowledge in mind, which calls for the exercise of reasonable care. We quote from an accepted authority as follows: “As a general rule, the fact that a railroad company allows the public to pass constantly on or over its — 679 — tracks with knowledge of the custom warrants the inference that it consents to the use, so that a person so using the track is regarded as a licensee, and trains must be operated with this knowledge in mind, and this calls for the maintenance of a lookout, the giving of timely warning, and the keeping of the engine under proper control. The care demanded in this situation is reasonable care. The test is whether there has been such use of the track as a footpath as to support reasonable grounds to the operatives of the train upon such a track to anticipate the presence of persons on or so near the railroad track as to endanger them. And for the purpose of this rule it makes no difference that the railroad company has posted signboards warning people not to trespass on the right of way. The rule requires engines to be operated at such places with lighted headlights at night.” White's Supplement to Thompson on Negligence, vol. 8, § 1725, and cases cited. In our opinion, the rule laid down by the foregoing authority is a reasonable one, and it cannot be considered as a departure from the former decisions of this court. It is but an application of the principle frequently applied that from acquiescence in a course of conduct for an extended time duties and obligations arise.. To hold in the instant case that the years of acquiescence upon the part of defendant to the use of its tracks in the manner stated created no duty of a reasonable care on the part of defendant toward these licensees would be contrary to both reason and authority. Our conclusion is that the trial court was in error in directing a verdict for defendant.- The judgment of the circuit court is reversed, and a new trial ordered. Brooke, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. Footnotes [1] Generally as to duty of railroad company to keep lookout for trespassers on tracks, see notes in 25 L. R. A. 289; 8 L. R. A. (N. S.) 1069, 1076; 41 L. R. A. (N. S.) 264; particularly as to speed, 11 L. R. A. (N. S.) 352.