Barney v. Hannibal & St. Joseph Railroad

Shebwood, J. — Owing to the view taken of the facts of this case, it will be unnecessary to quote or comment on the instructions given or refused, save one, in the nature of a demurrer to the evidence, which, offered by defendant, the trial court refused to give. In determining the propriety of this refusal, several points of law will be found to be involved. I. In the first place the rule applicable in what is known as the “turntable cases” has no application to cases of this sort. Railroad cars and similar machinery are not “dangerous machines” within the meaning of — 383 — that rule, as is abundantly and exhaustively shown, both directly and indirectly, in the following cases. Bishop v. Railroad, 14 R. I. 314; Catlett v. Railroad, 21 S. W. Rep. 1062; Railroad v. McLaughlin, 47 Ill. 265; Gavin v. City, 97 Ill. 66. The ease last cited was one where the injury occurred to a little boy only four years old, on a swing-bridge, and it was ruled that when such a bridge in a city is reasonably safe for persons using ordinary care, and a child, without the fault of its parents, with other children playing upon and about such bridge, is injured while the bridge is being handled with the requisite and usual care and skill, no recovery can be had against the city, but the injury must be attributed to accident. The law does not make it the duty of municipal authorities to so construct such bridges as to make them safe for children to play upon and around them; hence they are not required to place guards or mechanical contrivances to keep children !offi the same. Scott, J., remarking: “No doubt it would be possible to place a sufficient guard on duty at every' bridge that would prevent accidents to careless persons, and to children that might come there to play, or some mechanical contrivance might possibly be constructed that would answer the same purpose; but the law has not made it the duty of municipal corporations to observe such extraordinary care. The bridge, in the condition it was then in, was reasonably safe for all persons using the slightest care for their own safety. No duty rests on the city to make such bridges safe for children to play around or upon, nor is it expected parents will allow their children to occupy such dangerous places as playgrounds, and if they wander from their homes without the knowledge of their parents, and sustain injury at such places, 'it must be attributed to mere accident that no care which they are obligated to ob — 384 — serve, on the part of municipal authorities, could prevent. ’ ’ In McLaughlin’s case, supra, it was ruled that it was no part of the duty of a railroad company to maintain a guard over its cars left standing on its track, in order to keep children, playing about them, from getting upon or under them, and thereby save them from injury. In Morrissey v. Railroad, 126 Mass. 377, a child four years of age was injured by a train, and the injury occurred on the railroad track at a point one hundred and thirty feet from the street, at .a point where there was a path used by foot passengers, and .the company had been told that this pathway opening was very dangerous for children, and the company- had been requested to fence it. The evidence showed that the engineer did not see the plaintiff, neither before nor after the accident, but there was no evidence to show acts of willful carelessness on the part of the company. On the facts, Ames, J., observed: “The plaintiff at the time of the accident was a mere intruder and trespasser upon the railroad track. No inducement or implied invitation to him to enter upon it had been held out. He was neither a passenger nor on his way to become one, but was there merely for his own amusement, and was using the track as a playground. The defendant corporation owed him no duty, except the negative one not maliciously or with gross and reckless carelessness to run over him. Johnson v. Boston & Maine Railroad, 125 Mass. 75. Upon this question, and also upon the question whether the plaintiff’s injuries had resulted from the tortious acts of the defendant, without contributory negligence on the part of the plaintiff or those who had him in charge, the case was submitted to the jury with instructions of which no complaint, is made on his behalf. — 385 — The verdict was for the defendant, and we do not think that any other verdict conld have been authorized by the evidence.’-’ In Bishop v. Railroad, supra, the facts were these: While two horse cars attached together in charge of a driver on the front platform of the leading car and drawn by a single horse were driving over the tracks of the company in a public highway in the city of Providence from the stables to the repair shops, a lad six years old, to outstrip a playmate with whom he was racing, jumped on the rear platform of the leading car and soon afterwards fell off, or jumped off, and was seriously injured. The driver testified that he did not see the boys and knew nothing of the accident, which occurred between 2 and 3 o’clock p. m., until the evening. In an action against the horse car company to recover damages for the injury: Held,, that the company was not chargeable with negligence. Held, further, that the driver of the car was not chargeable with any neglect of duty. Held, further, that the company was not bound to employ a second man to guard the cars from intrusion during their transit. Held, further, that the company was under no duty or obligation of care to the boy. There, Durfee, C. J., after discussing the cases of Birge v. Gardiner, 19 Conn. 507, Railroad v. Stout, 17 Wall. 657 and Keffe v. Railroad, 21 Minn. 207, said: “These cases seem to reach the limit ©£ liability. * * * The case at bar differs very much from the three cases previously stated, for, in the ease at bar, the cars,instead of being left unattended, were in charge of the driver, who was in the act of driving them, so that there was nothing done to encourage the trespass, which was merely the result of a momentary impulse. Ordinarily, a man who is using his property in a public place is — 386 — not obliged to employ a special guard to protect it from the intrusion of children, merely because an intruding child may be injured by it. We have all seen a boy climb up behind a chaise or other vehicle for the purpose of stealing a ride, sometimes incurring a good deal of risk. It has never been supposed that it is the duty of the owner of such vehicle to keep an outrider on purpose to drive such boys away, and that, if he does not, he is liable to any boy who is injured while thus secretly stealing a ride. In such a case no duty of care is incurred.” And after discussing a number of cases like those of 126 Mass., supra, and 88 Pa. St. infra, etc., etc., said: “These are all cases of injury to intrusive or trespassing children, in which the defendants were held to be exempt from liability, although they might have prevented the injury, because the kind of care which would have been required to prevent it was not obligatory upon them.” See, also, McAlpine v. Powell, 55 How. Pr. 163; Railroad v. Connell, 88 Pa. St. 520; Snyder v. Railroad, 60 Mo. 413. In Emerson v. Peteler, 35 Minn. 481, the distinction is drawn between Keffe v. R’y Co., 21 Minn. 207, a turntable 'case, and the former case, where the injury occurred to a child five years old, who was killed while riding, unknown to the contractor or his employees, on cars loaded with earth used in making a fill. The boy who was killed, and his sister, considerably older, had been particularly warned not to ride on or go about the cars, and the employees of the contractor had been told not to allow children to ride on the cars. Commenting on these things, Vanderburgh, J., said: “We discover no evidence in the case tending to prove negligence on the part of defendant in conducting this work. Defendant’s management, and all the arrangements for moving these cars, were reasonably safe as respects danger to persons using ordinary care. This was the — 387 — measure of defendant’s duty. * * * Where there is no negligence, the incapacity of a child who happens to be injured can not create liability. Kay v. Penn. R. Co., 65 Pa. St. 269, 276. The burden rested on the plaintiff to establish defendant’s negligence, and it is not claimed that there was any, unless the failure to employ sufficient help to watch and keep children away was such. But the duty which defendant owed these children was not to keep constant watch, or to use ordinary care to prevent their approach, but, when discovered in the exercise of ordinary care, to use proper diligence to prevent any injury to them.” In McEachern v. Railroad, 150 Mass. 515, it was ruled that a railroad corporation is not liable to a boy who, without any invitation or enticement, trespasses upon its land and uses it for a playground and is injured by meddling with a defective car standing upon one of its tracks. In Railroad v. Henigh, 23 Kan. 347, a flat car was placed on a switch track where the grade was eighty feet to the mile. The brake was set. A boy four years and eight months old went to the car, climbed up thereon, and managed to loose the brake, when the car ran down the incline and the boy fell off, or jumped off. and was run over and killed, and held, the company was not liable, and that the car was not a dangerous machine. See, also, Railroad v. Stumps, 69 Ill. 409, and Curley v. Railroad, 98 Mo. 17. In Rushenberg v. Railroad, 109 Mo. 112, it was expressly ruled that the “turntable” doctrine did not apply to a train of cars. Indeed, it may be said that the doctrine of the “turntable cases” has been very strongly criticised in the states of New York, New Hampshire and Massachusetts. Daniel v. Railroad, 28 N. E. Rep. 283; Frost v. Railroad, 64 N. H. 220. But, even if that doctrine were applicable to rail — 388 — road cars when at a standstill, it could not apply here,, because here the cars were in motion, fully equipped with the requisite -number of hands, while the theory of the Stout case, is that the negligence consists in leaving-the dangerous machine, implement, etc., exposed, unlocked and imguarded. II. It is claimed that it was the duty of the defendant company to fence its yards. While cases may be-found requiring the performance of such a duty when it is imposed by special statutory provision, yet no case-has been encountered where, in the absence of such statutory provision, it has been adjudicated that the duty of fencing exists; because the common law recognizes no such obligation. And railroad corporations-stand,inthis regard, on the same footing as individuals.. Railroad v. Carraher, 47 Ill. 333; Hughes v. Railroad, 66 Mo. 325; Hayes v. Railroad, 111 U. S. 228. It is well settled in this state that railroad companies are not required to fence their tracks in cities, and towns, notwithstanding the statute makes no exceptions as to the general requirement regarding such fencing. And this ruling was made on the ground of necessity. By parity of reasoning, it would seem that it would be impossible, consistent with the demands of' commerce, to have railroad yards in a large city or town actually “fenced in.” Of course the object of such inclosure — to wit, the keeping out of trespassers from such yards, especially children — could not be accomplished without having gates at every opening (and not-the ordinary bar) in order to make the fence effectual for the purpose for which it was designed. It is only necessary to think for a moment of the-utter impracticability of such a measure where hundreds-of cars would be passing and repassing through the-gates every hour, thus requiring their continuous opening and closing, in order to repudiate -the visionary — 389 — idea advanced, altogether. But, if a railroad car or train is not to be regarded as a dangerous machine, as has been decided, then no necessity exists to place a barrier to prevent trespassers on the private yards of a railroad company from being injured. To such trespassers, no matter what their age, the railroad company, not having invited or encouraged their coming, owes no duty, except that of not wantonly or recklessly injuring them after having discovered them to be in peril. Williams v. Railroad, 96 Mo. 283; Hepfel v. Railroad, 51 N. W. Rep. 1049; Cauley v. Railroad, 95 Pa. St. 398. Even as to a licensee, the rule is that “no duty is imposed by law upon the owner or occupant to keep his premises in a suitable condition for those who come there solely for their own convenience or pleasure, and who are not either expressly invited to enter or induced to come upon them by the purposes for which the premises are appropriated and occupied, or by some preparation or adaptation of the place for use by customers or passengers, which might naturally and reasonably lead them to suppose that they might propeily and safely enter.” Straub v. Sodorer, 53 Mo. 43. In short, mere passive acquiescence of the occupier in a certain use of his land by others, generates no liability on his part. Moore v. Railroad, 84 Mo. 485. And the same principle which, under the authorities cited, would deny the necessity for guards to keep trespassing children from boarding moving cars, would equally reject the necessity of barriers when demanded in place of such guards. There are cases where fences are needed, and where liability arises, where injury occurs in consequence of their not being built, but that is only where, as, for instance, the owner’s premises extend up to the public highway and a dangerous excavation exists in close proximity to such thoroughfare. — 390 — But in such case such excavation would amount to a common nuisance, something which would' hardly be affirmed of a railroad company when engaged in its legitimate labors and ordinary avocation, of assisting in moving with its numerous trains of cars the commerce of the country. In Overholt v. Vieths, 93 Mo. 422, an abandoned quarry, but not bordering on the highway, became a pond in which the eight-year-old son of a party was drowned, and it whs ruled that the owner of the quarry was under no obligation to build a fence around it to keep away trespassers, nor liable for injury to them occasioned by the absence of such a fence. In that case approving quotation is made from Gillespie v. McGowan, 100 Pa. St. 144, where a boy of less than eight years of age was drowned in a well, open and uncovered and unguarded, and on an unfenced lot, aplace of common resort for children, and it was held that the boy was a trespasser; that the owner of the lot was under no duty to him to fence the lot or guard the well, and that, of consequence, no recovery could be had; Paxon, J., very pertinently remarking: “There are streams and pools of water where children may be drowned; there are inequalities of surface where they may be injured. To compel the owners of such property either to inclose it or fill up their ponds and level the surface so that trespassers may not be injured, would be an oppressive rule. The law does not require us to enforce .any such principle, even where the trespassers are children. We all know that boys of eight years of age indulge in athletic sports. They fish, shoot, swim and climb trees. All of these amusements are attended with danger, and accidents frequently occur. It is part of a boy’s nature to trespass, especially where there is tempting fruit, yet I never heard that it was the duty of the owner of a fruit tree to cut it down because a boy — 391 — trespasser may possibly fall from its branches. Yet the principle contended for by the plaintiff would bring us to this absurdity if. carried to its logical conclusion. Moreover, it would charge the duty of the protection of children upon every member of the community except their parents.” Citation has been made by plaintiff to Schmidt v. Distilling Co., 90 Mo. 284. There a child, three years old, fell into a pool of hot water and was scalded to death, the pool being formed by the escape of steam and water used in defendant’s business, and was only some eighteen inches wide and some- fifteen inches deep. This pool was at a distance from the public road and on the private grounds of defendant. And it was held in effect that if the little hole of hot water and mud was “ attractive to children,” that it then should have been inclosed, and if not inclosed, being thus attractive, etc., defendant would not be “properly exercising its dominion over its own property.” Contrasting the Overholt and the Schmidt cases, it would seem that the chief difference between them consisted in the temperature of the water, where the respective accidents occurred. Unless they can be reconciled and differentiated on this theory and on the further theory that a little muddy puddle of hot water that a child might step over is more attractive to a child than a deep pond of cold water, then they are utterly irreconcilable. This being so, we shall follow the ruling of the later case. As to Fink’s case, 10 Mo. App. 61, it was expressly overruled on appeal to this court. 82 Mo. 276. III. If it be true, as shown by the authorities, that plaintiff was a trespasser,-to whom defendant owed no duty except that of not wantonly or recklessly injuring him, after discovering his peril, then, of course, no duty existed outside of that exception between the defendant corporation and the plaintiff, and if no duty, — 392 — then no negligence, because the latter must have the former as its inevitable and indispensable predicate. Hallihan v. Railroad, 71 Mo. 113. IV. But plaintiff, in the particular act which resulted in the accident, was a trespasser, made so by the statute as well as by the ordinance of St. Joseph. Section3927, Revised Statutes, 1889, makes it a misdemeanor for “any person, minor or adult, to climb upon, hold to or in any manner attach himself to any locomotive engine or car, while the same is in motion, or running into or through any city or town in this state.” The ordinance is of similar import. Plaintiff being a trespasser, a violator of law, could have no ground of recovery based on his own dereliction. But it is claimed for plaintiff that these regulations of the law do not apply to “babiesWhile the law may not apply in a criminal proceeding to a child of very tender years, yet, still for the purposes of a civil action, the consequences of the unlawful act must be the same in the ease of an infant even of very tender years, as in the case of an adult. In a word, the act of the infant in consequence of his tender years is, though non-criminal, yet is wrongful in the sense of being an invasion of the rights of another, just as much so as though done by an adult. And a landowner is under no duty to a mere trespasser to keep his premises safe; and the fact that the trespasser is an infant does not raise a duty where none otherwise exists. Frost v. Railroad, 64 N. H. 220, and cases cited. V. But plaintiff’s counsel says that defendant assumed the duty of keeping its yards clear of boys, by giving instructions to its yard hands, etc.; but that this duty was neglected and therefore a cause of action arises alone from this neglect. But if the prior duty did not exist to keep the boys out of the yards, then the mere assumption of a nonexistent duty, would be but a — 393 — gratuity with no precedent or concurrent consideration on which to base it, and therefore no liability would follow such assumed and pretermitted duty. Mere pretermission of a self-imposed precaution does not constitute actionable negligence. Skelton v. Railroad, L. R. 2 C. P. 636; Campbell on Negligence [2 Ed.], ;sec. 41. In conclusion, we hold that the trial court committed error of law in denying defendant’s instruction in •the nature of a demurrer to the evidence, and therefore properly granted a new trial. For these reasons, judgment affirmed. All concur.