Cronopolous v. Pennsylvania Co.

DENISON, Circuit Judge (after stating the facts as above). [1] It is plain that plaintiff was a trespasser upon the railroad property. He was not merely there without any license or right; he was engaged in appropriating to his own use property in which the railroad had at least a bailee’s title. As between himself and the railroad, he was stealing the railroad property. There is no reason why there should be, in his favor, any relaxation of the rule as to injuries to a trespasser, which rule goes at least as far as to hold that the railroad is not liable for such injury unless its employés knew or were chargeable with knowledge that he was in danger, and nevertheless proceeded wantonly or with reckless indifference. Kansas City Co. v. Cook (C. C. A. 6) 66 Fed. 115, 121, 13 C. C. A. 364, 28 L. R. A. 181; Louisville Co. v. McClish (C. C. A. 6) 115 Fed. 268, 273, 53 C. C. A. 60; Felton v. Aubrey (C. C. A. 6) 74 Fed. 350, 356, 20 C. C. A. 436; Louisville Co. v. Womack (C. C. A. 6) 173 Fed. 752, 754, 97 C. C. A. 559; Dickson v. Chattanooga Co. (C. C. A. 6) 237 Fed. 352, 354, 150 C. C. A. 366, L. R. A. 1917C, 464. There is no testimony fairly tending to bring Cronopolous within the protection of this rule. In ,the first place, there had been a substantial interval after he was seen by the engine crew and before he was hit. In the meantime, he had filled his basket and gone away. If the engine crew had then investigated, they would have found he was not there. No railroad man saw him after the beginning of that second trespass during which he was hurt. [2] In the next place, it is the merest surmise that the flying switch was being made by the same switching crew, members of which had seen him a while before. The first engine, with its cut of cars, had gone back to the east. The yards were located about a block east, and the cars which hit plaintiff were propelled from that direction and from or from near the yards. Even if we overlooked the fact that the flying switch was presumptively ordered by a yardmaster or by a conductor, and that neither one of these would naturally have been on the first engine, still there is an entire lack of connection between the employés who saw the plaintiff and the employes who later caused the injury. It cannot be thought that notice to the first engine crew of the temporary presence of these trespassers imposed on that crew any duty to give notice to the remainder of the defendant’s employés in and about the yards. Thirdly and finally, when the engine crew saw plaintiff, he was in a place of safety. Notice that plaintiff, upon one trip of the engine, had been picking up property along the right of way, but at a safe distance from the tracks, would not be notice that upon the next trip he would be between the tracks or close to the rails. A flying switch is dangerous, and suggests, if it does not import, negligence as against strangers rightfully upon the track; but, where it is used in the yards or private right of way, we are not prepared to say that it indicates wantonness or reckless indifference, as against those of whose presence there is no more notice than here appears. We are compelled to think that, under the undisputed facts, plaintiff was in a place of danger solely at his own risk, and that there was no evidence justifying recovery. The judgment is affirmed.