Anderson v. Chicago, St. Paul, Minneapolis & Omaha Railway Co.

Pinney, J.

1. The plaintiff’s contention was that the defendant had been guilty of negligence in running its train at a dangerous and unlawful rate of speed, and in not keeping a proper outlook, and for failure to give timely warning of the approach of the train. It was error, we think, to admit the testimony of the witnesses Weed and Oleson to the effect that for a few days after the accident the defendant ran its trains over the trestle quite slowly, and afterwards ran them at its former alleged dangerous rate of speed of thirty or thirty-five miles an hour. The tendency of the testimony was to show, by implied admission, that the defendant habitually, down to the time of the accident, had been guilty of negligence in not using reasonable and ordinary care towards those who crossed the trestle, and towards the plaintiff’s intestate as well; that the conduct of the defendant after the accident was an implied admission of fault on its part, and it soon after, in disregard of its alleged duties, returned to its former dangerous if not reckless course of conduct. The question is the same in principle as in the case where an injury has been caused by defective machinery or an insufficient highway, and repairs have been made immediately or soon thereafter. A party may have exercised all the care which the law required, and yet, after an accident, he may think it well to use additional caution or safeguards; and it is unjust to hold that the fact that he had done so is an admission of previous negligence, or that his return to previous methods evinced a disposition bo persist in a negligent and dangerous course of conduct. Castello v. Landwehr, 28 Wis. 530 ; Lang v. Sanger, 76 Wis. 75 ; Morse v. M. & St. L. R. Co. 30 Minn. 465 ; Columbia & P. S. R. Co. v. Hawthorne, 144 U. S. 202, 207 ; Skinners v. Proprietors of L. & C. 154 Mass. 168 .

2. The question whether a party injured or killed on the *203 track was drunk at the time, and whether his being drunk was contributory negligence, is, as a rule, a question of fact for the jury. The court stated to the jury that the fact, if it was a fact, that the plaintiff’s intestate was under the influence of intoxicating liquors at the time he lost his life, “did not relieve the defendant in any particular, but could only be considered for the purpose of showing that there was contributory negligence on his part,” adding: “Eor the defendant, if there were no contributory negligence on the part of the deceased, would be liable even if the deceased were intoxicated at the time he lost his life.” This instruction, as given, is somewhat obscure and contradictory, and fails to express the idea the court probably intended to convey. The instruction left the jury to infer that, although drunk when he went into this position of great danger, as detailed in the evidence, the defendant might be liable “the same as it would be if he were sober.” The instruction was not called for by the facts, and was, we think, misleading. We do not think that the plaintiff’s intestate can be held free from contributory negligence if he was intoxicated, and in that condition walked out upon the trestle to a position of great peril to life or limb, and, in, attempting to cross it, lost his life at the time and under circumstances given in evidence, and about which there is really no dispute. The instruction left it to the jury to conclude that there 'could be a recovery, although he was drunk at the time, and it was therefore misleading and erroneous, and it was erroneous in leaving the jury to conclude that there could be any recovery at all.

3. Walking upon the track of a railway has been held in many cases to be negligence per se, and sufficient to defeat a recovery in case of injury to the party by a passing train. Moore v. Penn. R. Co. 99 Pa. St. 301; Bresnahan v. M. C. R. Co. 49 Mich. 410 ; McClaren v. I. & V. R. Co. 83 Ind. 319 ; Harty v. Central R. Co. 42 N. Y. 468 ; Tennenbrock v. *204 S. P. C. R. Co. 59 Cal. 269 ; Yarnall v. St. L., K. C. & N. R. Co. 75 Mo. 575 . Bat in general it is held that the question as to such an act, in the event of any injury, is one proper to go to the jury. Beach, Contrib. Neg. § 211; Townley v. C., M. & St. P. R. Co. 53 Wis. 626 ; Johnson v. C. & N. W. R. Co. 56 Wis. 274 . Courts universally characterize such an act as dangerous, and “ a civil wrong of an aggravated nature, as it endangers not only the trespasser but all who are passing and being carried over the road.” Philadelphia & R. R. Co. v. Hummell, 44 Pa. St. 375. The use of a railroad is exclusively for its owners or those acting under its authority, and the company is not bound to the exercise of any active duty of care or diligence towards mere trespassers on its track, to keep a lookout to discover or protect them from injury, except that, when discovered in a position of danger or peril, it is its duty to use all reasonable and proper effort to save and protect them from the probable consequences of their indiscretion or negligence. The company is also bound to provide for a careful outlook, in the direction in which a train is moving, in places where people, and especially children, are likely to be on the track, as in and about station grounds, depots, and regular crossings. This rule has been laid down in Townley v. C., M. & St. P. R. Co. 53 Wis. 626 , and Whalen v. C. & N. W. R. Co. 75 Wis. 654 , and other cases; but its limit is best understood in view of the character of the places where the injuries in such cases occur, that is to say, such as are above indicated. The rule, manifestly, has no application to the main track of the company in other places; for, as to them, it is not bound to act upon the assumption that the public or wayfarers will trespass upon its rights. But after discovery that a party is on its track and in a position of danger, it is bound to the exercise of reasonable and appropriate care to prevent his injury, even though wrongfully on its track, and to take as prompt and *205 active measures as possible, if the person is helpless or unconscious or unable to escape.

It has frequently been held in this and other states that where the grounds of a railway are used by pedestrians for a considerable time without objection, or with acquiescence on the part of the company, a pedestrian crossing over the same thereby becomes a licensee, and is no longer to be considered as a mere trespasser acting at his peril, and that it is the duty of the company to exercise increased prudence and caution in operating its road at such point, and to keep a reasonably vigilant lookout to prevent injury or accident to those so crossing its grounds. Townley v. C., M. & St. P. R. Co. 53 Wis. 626 ; Whalen v. C. & N. W. R. Co. 75 Wis. 654 ; Davis v. C. & N. W. R. Co. 58 Wis. 646 ; Delaney v. M. & St. P. R. Co. 33 Wis. 67 ; Johnson v. L. S. T. & T. Co. 86 Wis. 64 . In all these cases the injury occurred at the station or on the depot grounds or yard, where parties would naturally resort and cross over the same, and where the agents and servants of the company could exercise a proper degree of care and watchfulness under the circumstances; but we have not met with any case, in which the point was necessary to the decision, where it has been held that a license can be implied from such acts of frequent use by pedestrians or wayfarers of the main track or bridges or trestles distant from such places as a pathway for travel, though we find that in other states the rule of implied license has been applied to parties frequently crossing the track at particular points other than regular crossings. In the case of Hooker v. C., M. & St. P. R. Co. 76 Wis. 542 , it was reasonably clear, and was so found, that the company was guilty of negligence that caused the accident; and it appeared that “from a point 1,168 feet north of the bridge on the west side of the track, at the height of an engine cab, the whole track could have been plainly seen southward through the bridge, and to *206 Main street beyond, without any obstruction whatever.” The case was rightly decided, and whether the injured party was a licensee or not was not material or necessary to sustain the judgment. In the Davis Case, 58 Wis. 646 , the party injured was walking between the main track and a side track, across a public street, when he was injured by the explosion of the boiler of a locomotive that had been left unattended on a side track.

In the case of Mason v. M. P. R. Co. 27 Kan. 83 , where the company had constructed a trestle or bridge over a creek and street on the plat of a city, and where the street had not been graded or improved, with a span of 160 feet over a stream sixty-five feet wide, and thirty feet above the water, and there were no railings to the trestle or bridge, and no foot planks on it, and the only way of crossing was by stepping from tie to tie, and the railway company was constantly using the track for the operation of its engines and cars, it was held that, in an action by a person injured while crossing the bridge by a collision with a hand car, no license could be implied from the custom of foot passengers to cross over the bridge, and evidence to show such user was held to have been properly stricken out. In Tennenbrock v. S. P. C. P. Co. 59 Cal. 269 , in a similar case, it was held that one injured while walking over the bridge or trestle by a train was guilty of contributory negligence.

In the present case the defendant company had done .nothing to 'invite or induce the public to use this trestle for a footway. It was on the main track, over which at least twelve regular trains crossed each day, and there were occasionally special trains, and trains and switch engines besides passed over it from the Bay Front track to bring lumber upon the main line. It was impossible to meet or have a train pass one on the trestle without almost certain death, or the greatest possible injury to the pedestrian. It was not planked over in any part, and was so narrow as to *207 leave no room on it outside of a passing train, and was so built as rather to repel than induce or invite foot travel over it. If the deceased was intoxicated, that was his own fault; and, if not, there was still less excuse for his being on the trestle. It did no't become any the less dangerous on account of the frequency of its use, and we think that it would be contrary to sound public policy and a due regard to the safety of passengers over the road and operatives to hold that there can be any implied license to use-the track along or between the rails or over trestle or other bridges as a way for foot travel.

But the statute of the state has declared the public policy of the state upon this subject beyond cavil or dispute. It is provided by sec. 1811, R. S., that “ it shall not be lawful for any person, other than those connected with or employed upon the railroad, to walk along the track or tracks of any railroad, except when the same shall be laid along public roads or streets; provided, that this section shall not be construed to prevent any person from driving across any such roads from one part of his own land to another.” “ This legislation is justified,” it was held in McDonald v. C., M. & St. P. R. Co. 75 Wis. 128 , in construing the previous clause of the same section, as “ not only being for the protection of the lives and property of those owning and engaged in the operation of the railroad, but also for the protection of the lives of those traveling upon it;” and a violation of the act was held to be contributory negligence. The consequence is that the plaintiff’s intestate was a trespasser and unlawfully upon- the trestle bridge at the time he came to his death. There could be no license that would be of any avail to allow him or others to walk over and along the track upon this bridge. The law forbids such use of the track, and makes the alleged implied license relied on nugatory and of no avail. Any other conclusion would entirely defeat the manifest *208 purpose of the statute, and render it wholly inoperative. The company was only hound to exercise the care and caution towards the deceased that they are required to exercise, in the case of a trespasser, after it has been discovered that he is on the track and in a position of probable or actual peril.

It follows from these views that the instructions of the circuit court in respect to the right of the plaintiff’s intestate to cross the trestle bridge, and the duty of the defendant towards him while crossing, were erroneous. Upon the case as made by the plaintiff, we think that the plaintiff’s intestate, at the time he was killed, was guilty of negligence contributing to the result. Comment on the facts is unnecessary. They speak for themselves. The evidence on the subject of contributory negligence is clear and decisive. For these reasons the judgment of the circuit court must be reversed.

By the Court.— The judgment of the circuit court is reversed, and the case is remanded for a new trial.