Farley v. Cincinnati, H. & D. R. Co.

CLARK, District Judge, after stating the case as above, delivered the opinion of the court. The ruling of the court, on motion to direct a verdict in favor of the defendant, is assigned for error, and presents the single question on which the case is here for re-examination. It is well settled, and not controverted, that a person must be expressly or impliedly received as a passenger before the carrier comes under obligation to exercise towards such person that high degree of care and caution for his safety which is due from the carrier to the passenger. The relation between carrier and passenger is contractual, and is created only by [17] contract, express or implied. Bricker v. Railroad Co., 132 Pa. 1, 18 Atl. 933; Railroad Co. v. Smith, 30 C. C. A. 58, 86 Fed. 292, 40 L. R. A. 746; Railroad Co. v. Meacham, 91 Tenn. 428, 19 S. W. 232; 5 Am. & Eng. Enc. Law (2d Ed.) 488; Brown v. Scarboro, 97 Ala. 316, 12 South. 289; Railway Co. v. Williams, 91 Tex. 255, 42 S. W. 855; Gardner v. New Haven & N. Co., 51 Conn. 143, 150; Railroad Co. v. O’Keefe, 168 Ill. 115, 48 N. E. 294; Railway Co. v. Best, 169 Ill. 301, 48 N. E. 684. Manifestly, this obligation does not rest on the carrier with respect to one who, without the knowledge of the carrier, boards a car knowing that the car is not ready for receiving passengers, and that it is' not expected or intended that it should be entered at that time or place. The contention of plaintiff in error is that there was evidence tending to show a custom or usage on the part of these mail clerks to enter the post-office car in the switch yard, or at other places where the car might be found, at the usual time of boarding the car, and that when plaintiff in error, pursuant to this custom or practice, entered the post-office car on the occasion in question he was thereby impliedly received as a passenger, in view of the custom, and the relation of carrier and passenger created. To support this contention, it is necessary for the plaintiff in error to insist (as indeed is done) that the evidence tended to show a custom so definite and well established that the railroad company might justly be charged with constructive or presumptive knowledge of the custom. _ It is not claimed that the evidence shows, or tends to show, positive knowledge brought home to the railroad company of the custom or practice now asserted to have existed. Nor is it urged or suggested that the defendant in error, through any officer or agent, was, in fact, aware of the presence of the plaintiff in error in the mail car at the time of or before the collision. The difficulty to a railroad company in exercising a high degree of care towards persons on cars in motion in its switch yards, and the increased liability from obligation to do so, are so manifest that a usage or custom relied on to create the relation of carrier and passenger, and impose on the railroad company this high duty, ought, under such conditions, upon the plainest principles of justice, to be established by evidence which shows, or strongly tends to show, a well-defined, definite, and continuous practice, from which knowledge on the part of the company may be fairlv inferred. In Railroad Co. v. Cook, 13 C. C. A. 864, 66 Fed. 115, 28 L. R. A. 181, this court, speaking through Judge Lurton, in reference to a switch yard, said: “It was tlie place where trains were broken up, and outgoing trains made up. Engines and cars were, from the necessities of a great business, in continual motion, backward and forward, and passing from one track to another. The business of the company, the rapidity of transportation, the success with which that business should he conducted, and the dangerous character of the work required to be there done, demanded that the business of such a yard should be surrendered to the company’s own uses, free from any interference, and untrammeled by unnecessary restrictions upon the manner in which its trains should be there handled.” It is apparent that the evidence, to establish a usage or practice like that here in question, would be, for all substantial purposes, sim [18] ilar to that necessary to show such a use and custom as would give rise to an implied license to use the private tracks and grounds of a railroad company as a walkway or crossing. It is true there are points of difference, but the -questions involved are analogous in respect of the evidence, which is sufficient to establish the custom or practice upon which the implied rights rest. In Felton v. Aubrey, 20 C. C. A. 446, 74 Fed. 360, the question of implied license, and the evidence and use essential to establish such a license, were much considered. Judge Lurton, giving tire opinion of the court in that case, said: “Tlie rule we deduce from the cases "best reasoned and most consistent with sound public policy is this: If the evidence shows that the public had for a long period of time, customarily and constantly, openly and notoriously, crossed a railway track at a place not a public highway, with the knowledge and acquiescence of the company, a license or permission by the company to all persons-to cross the track at that point may be presumed, Barry v. Railroad Co., 92 N. Y. 289; Byrne v. Same, 104 N. Y. 362, 10 N. E. 539; Railroad Co. v. White, 84 Va. 498, 5 S. E. 573; Davis v. Railway Co., 58 Wis. 646, 37 N. W. 406; Hooker v. Railroad Co., 76 Wis. 542, 44 N. W. 1085; Troy v. Railroad Co., 99 N. C. 298, 6 S. E. 77; Railway Co. v. Phillips, 112 Ind. 59-67, 13 N. E. 132; Palmer v. Railroad Co., 112 Ind. 250-261, 14 N. E. 70; Hargreaves v. Deacon, 25 Mich. 1. Persons availing themselves of such an implied license would not be trespassers, and the railroad company would come under a duty in respect to such licensees to exercise reasonable care in the movement of its trains at points where it was bound to anticipate their presence. To establish such an implied license, it is essential that the use shall have been definite, long* open, and continuous. The mere fact that a railway track is frequently used as a walkway, or frequently crossed, and that no active steps were taken to stop them, would not justify the presumption of a license. The cases we have cited in support of the rule stated abundantly support this limitation. The practice of crossing this railway track at random, or walking upon it, should not be encouraged; and when one injured seeks to show that he was not a trespasser, and relies upon an implied license, lie should be required to make out the license clearly.” This is the general doctrine of the adjudged cases. 27 Am. & Eng. Enc. Law, 740-744; Park v. Viernow, 16 Mo. App. 883. The witness Connor is very clear and positive in the statement that, throughout the four years during which he had been on this run prior to the accident, the regularly established place for stationing the mail car for the reception of mail matter and the clerks had been at this express station. And plaintiff in error admits that this is so, though the fact is stated less positively, if not reluctantly, his exact language being: “The car should at that particular time stand over on what they call the 'Buck Track,’ north of the express warehouse.” It being shown by the plaintiff’s own evidence that the regular place for receiving these mail clerks as passengers was at the express station, the difficulty attending an effort to show a usage or custom of entering the car at other places, or wherever it might be found, might be easily anticipated. And that this difficulty was recognized is entirely apparent throughout the plaintiff’s own testimony, which is exceedingly indefinite, meager, and unsatisfactory in all of the particular statements cited as tending to show the practice or usage relied on to sustain the theory on which the action proceeded. No place at which the mail car was customarily or constantly boarded is mentioned or sug [19] gested more definitely than the statement that it was wherever the car might be found. There is not a suggestion of any place at which the car was generally or frequently found other than the express station. If it were conceded that the evidence tended to show a practice sufficiently definite, long, or continuous to charge the carrier with constructive knowledge and acquiescence, it would still remain a question on this record whether such usage or practice could be extended to include a case like that with which we are dealing here, where the mail clerk boarded the train immediately on its arrival in the depot at the end of the trip or run, and before the mail car had been cut out or separated from the train,, or moved to any place in the yards for the purpose of being furnished and prepared for another trip, and when it would seem that any person of ordinary intelligence must have known it was not intended or expected that passengers were entering the car for the purpose of going on a trip in the opposite direction. We merely suggest this" phase of (he case in passing, hotvever, as we prefer to determine the larger question, and dispose of the case upon the broader ground, on which the discussion proceeded in this court and in the court below. And without extending this opinion further, or discussing the facts more in detail, it is sufficient to say that, from a careful study of the evidence found in the record, we are brought to the conclusion that the circuit court rightly directed a verdict in favor of the defendant. We conclude that there was no substantial evidence tending to show such a custom or practice as -would have justified the jury in finding that the plaintiff in error had been impliedly received as a passenger, and without which it is not insisted, and, indeed, could not be, that the defendant was chargeable with the breach of any duty towards plaintiff in error. The law will not imply a contract by a railroad company to assume responsibilities for one as a passenger from such facts as are disclosed by the record in this case. Judgment affirmed.