St. Louis & S. F. Ry. Co. v. Bennett

SANBORN, Circuit Judge, after stating the facts as above, delivered the opinion of the court. The only duty which a railroad company owes i:o those who, without its knowledge or consent, enter upon its tracks, not at a crossing or other like public place, is not wantonly and unnecessarily to inflict injury upon them after its employes have discovered them. It owes them no duty to keep a lookout for them before they are discovered, because they are unlawfully upon the tracks, and the railroad company is not required to watch for violations1 of the law. Railroad Co. v. Howe, 3 C. C. A. 121, 52 Fed. 362, 369; Railway Co. v. Tartt, 12 C. C. A. 618, 64 Fed. 823; Railroad Co. v. Cook, 13 C. C. A. 364, 66 Fed. 115; Denman v. Railroad Co., 26 Minn. 357, 4 N. W. 605; Railway Co. v. Monday, 49 Ark. 257, 261, 4 S. W. 782; Sibley v. Ratliffe, 50 Ark. 477, 483, 8 S. W. 686; O’Keefe v. Railroad Co., 32 Iowa, 467; Yarnall v. Railway Co., 75 Mo. 575; Button v. Railroad Co., 18 N. Y. 248, 259; Nicholson v. Railway Co., 41 N. Y. 525. If it were conceded that where a railroad company lias given to others an express license to use its tracks for a certain purpose, and where it has invited them to make use of ihe tracks for such a purpose, and has thus given them an implied license so to do, it owes to these licensees the additional duty to use ordinary care to look out for them upon its tracks, and., if discovered, to warn them of the approach of its engines and trains as they pass, yet in the absence of any such express license to use, of any invitation, and of any notice or knowledge on the part of the railroad company that strangers have used or are about to use its tracks for their own purposes, the fact that they had been so used without objection would constitute no license, express or implied, and would impose upon the company no duty of active vigilance towards those who so used them. Under such circumstances the railroad company could have no reason to anticipate danger to those who were occupying its tracks without its [528] knowledge, and it would owe them no other duty than not to wantonly or willfully injure them after it discovered their dangerous situation. Richards v. Railway Co., 81 Iowa, 426, 430, 47 N. W. 63; Splittorf v. State, 108 N. Y. 205, 213, 15 N. E. 322; Poling v. Railroad Co. (W. Va.) 18 S. E. 782; Sutton v. Railroad Co., 66 N. Y. 243, 246; Nicholson v. Railway Co., 41 N. Y. 525, 529; Sweeny v. Railroad Co., 10 Allen, 368, 372; Gaynor v. Railroad Co., 100 Mass. 208, 214; Wright v. Railroad Co., 142 Mass. 296, 299, 7 N. E. 866; Hargreaves v. Deacon, 25 Mich. 1. These are indisputable principles of the law of negligence. Under them, the court below fell into an error, in its charge to the effect that the fact that the employés of the railroad company, who were operating the trains at the time and place of the accident, could not see the deceased and his colaborers and did not know where they were, and the further fact that the railroad company had no notice or knowledge of the use of this tramway over its tracks by the lumber company, and of the custom of the employés to place themselves upon the track to remove it, constituted no defense to this action. 'The ■violation of a duty to the injured party, and resulting damage, are indispensable elements to a cause of action for negligence. If there is no breach of duty, there is no wrong, and hence no remedy. If the railroad company had no notice or knowledge that the employés of the lumber company were accustomed to throw themselves down upon its track whenever a switch engine approached on the spur, and if, as they came in along the tracks, the employés of ‘..he railroad company operating these engines could not see the workmen upon this track, and did not know where they were, no one in their situation could have foreseen, or could have reasonably anticipated, that an open switch and a fast-running freight train would catch four strangers to the railroad company upon this track between two box cars, and kill them. Their injury and death were not the natural and probable consequence of running a freight train against standing cars upon this spur track. This result would not have followed, had it not been for the unexpected intervention of a new and independent cause, that they could not foresee,—the voluntary descent of these unfortunate workmen upon this track without notice. But an injury that could not have been foreseen nor reasonably anticipated as the probable result of an act of negligence is not actionable, nor is an injury that is not the natural consequence of the negligence complained of, and would not have resulted from it but for the interposition of some new and independent cause. Railway Co. v. Elliott, 5 C. C. A. 347, 350, 352, 55 Fed. 949; Railway Co. v. Callaghan, 6 C. C. A. 205, 208, 56 Fed. 988; Railway Co. v. Moseley, 6 C. C. A. 641, 57 Fed. 921; Insurance Co. v. Melick, 12 C. C. A. 544, 550, 65 Fed. 178; Railway Co. v. Kellogg, 94 U. S. 469; Hoag v. Railroad Co., 85 Pa. St. 293, 298, 299. The court below fell into another error in its ruling that there was no evidence of contributory negligence by the deceased in the record of this case. One who is injured in a dangerous place, in which he has voluntarily placed himself, with knowledge that he will inevitably be injured there unless he speedily removes himself from his [529] dangerous situation, necessarily contributes to an injury which results before he removes himself. If he had not placed himself in the dangerous situation, he would not have been injured. When he Inis put himself in that situation, with knowledge of the danger, he has committed an act of negligence that, he knows will inevitably cause him injury unless a new and independent cause interposes to prevent it. If the new cause does not interpose, his original act of negligence works out its natural and probable effect, and produces the anticipated injury. Thai, is the unfortunate situation in which the deceased and liis fellow workmen placed themselves on the day of this accident. They knew that the place upon the railroad bed of this spur track, about 16 feet square, closed1 in by two box cars on two sides, and by two platforms 4 feet high on the other side, was a dangerous place. If this liad been a public crossing, and they had not known that cars were about to move across it, they would have been required to take notice that it was dangerous. The supreme court declares: “Tlie track itself, as it seems necessary to iterate and reiterate, is itself a warning. It is a place of danger. It can never be assumed that cars are not approaching- on a track, or that there is no danger therefrom.” Elliott v. Railway Co., 150 U. S. 245, 248, 14 Sup. Ct. 85. But this was not a public crossing, and, in addition to the warning of the presence of the track, they knew that there was an engine on this track, and that cars were about to be moved by it over the very part of the track where they went to work. Indeed, it was because they knew this that they went upon the track at all. They went there to remove the tramway out of the way of the cars they expected would be moved along this track, across which it then extended. From their pen upon this track they could not see approaching trains upon the railroad tracks, nor could the men upon the trains see them; yet they did not notify the employés of the railroad company that they intended to go upon, or were concealed upon, this track, nor did they station any sentinel without their inclosure, where he could see approaching trains, to watch for and warn them of their coming. Their knowledge of their own situation and of their imminent danger imposed upon them the duty of exercising a higher degree of care to protect themselves than was required of the servants of the railroad company, who had no notice that they were upon the track. But the facts to which we have adverted would, in our opinion, have fairly sustained the inference that they were guilty of acts of negligence that inevitably contributed to their injury. There are many other errors assigned, but the questions they present may not arise upon a second trial, and it is unnecessary to discuss them at length. We content ourselves with a few suggestions that may be of assistance to court and counsel upon the next trial. ■While, as we have said in Railway Co. v. Curb, 18 C. C. A. 587, 66 Fed. 519, considerable latitude may be allowed to counsel in their criticism of the testimony of witnesses and of the evidence in their arguments to the jury, they ought not to indulge in extended discussion of questions not presented by (he evidence, for the obvious purpose of exciting passion and prejudice, or in gross misstatements of [530] the evidence, or in clearly erroneous declarations of the law, when it has been announced by the court, which tend to deceive and mislead the jury and to prevent a fair and impartial trial of the case. Railway Co. v. Farr, 6 C. C. A. 211, 12 U. S. App. 520, 56 Fed. 994; Railway Co. v. Myers, 11 C. C. A. 439, 63 Fed. 793. The general rule for the measure of damages in cases of the class to which this belongs was stated by this court in Railway Co. v. Needham, 3 C. C. A. 129, 52 Fed. 371, 378. The judgment below must be reversed, and the cause remanded, with directions to grant a new trial, and it is so ordered.