Cleveland, C., C. & St. L. Ry. Co. v. Tartt

BAKER, District Judge.

This case has been before this court, when it was reversed and remanded, with instructions to grant a new trial, and to permit the declaration to be amended. Railway Co. v. Phillips’ Adm’r, 24 U. S. App. 489, 12 C. C. A. 018, 04 Fed. 823. On the return of the case a new trial was granted, and the declaration was amended by simply inserting the word “willful” in three places next before the word “negligence.” The evidence on the last trial differs in no essential particular from that on the former, except that upon the last trial evidence was introduced showing that the train could have been stopped within the distance of 2,000 feet, or thereabouts. The statement of facts found in the former report of this case, except the evidence in reference to the distance within which the train could have been stopped, is adopted as a substantially correct statement of the facts in the present case. To set out the numerous instructions given and refused to which exceptions were talien would needlessly protract this opinion. (The record contains 52 assignments of error. The instructions are not entirely harmonious in their statement of the legal principles applicable to the case, and it is not apparent how the jury could have reached the verdict they did, if they had been governed by the instructions given. But, as the case ought to be reversed for error in refusing to direct a verdict for the plaintiff in error, a careful examination of the other errors assigned is unnecessary.

' It was decided when the case was here before that the deceased was, at the time he was killed, a trespasser or mere naked licensee on the right of way of the plaintiff in error, and, as such, that it owed him no duty of care to provide against accidents to him. We also held that the court erred in refusing to direct a verdict in favor of the plaintiff in error on the ground that the evidence was insufficient to justify a submission of the case io the jury. These rulings became the law of the case, and must control the decision on the present writ of error, unless the case made by the evidence differs in some material and controlling aspect from that made on the former trial. A careful study of the evidence which is in the record fails to disclose any material difference, except that in relation to the distance within which the train could have been stopped. That the deceased was a trespasser or mere naked licensee at the time he was killed is clearly shown, and is the settled law of the case; and as no new or additional evidence was produced, except as above stated, the court below, in obedience to the opinion of this court, ought to have sustained the request of the plaintiff in error to direct the jury to find a verdict in its favor. But, if this was the first time this case was before us, the result must be the same. The undisputed evidence shows that the deceased and his son were trespassers on the right of way of the plaintiff in error at the time he was killed. The evidence fails to show negligence on the part of the plaintiff in error or its servants which was the proximate cause of the death of the plaintiff’s intestate. It is firmly settled that it is not the duty of the einployés operating a railroad train to exercise care and diligence in looking for trespassers on the railway track, and that no duty of care in respect of such trespasser arises until he is seen upon or so near the railroad track as to show that he is liable to injury from tbe train moving thereon. Xor does it become the duty of the trainmen to- arrest the progress of their train as soon as they discover a trespasser on or dangerously near the track. They have the right to proceed on the assumption that the trespasser, having a due regard for his own personal safely, will voluntarily withdraw from the track, and not. remain in a place of known danger until he is injured or killed. It: is only when it becomes apparent that such trespasser is either unaware of, or unable to avoid, impending danger, and when those in charge; of the train have reasonable cause to apprehend that injury will probably result unless an effort is made to stop the train, that it becomes their duty to do so. As between the railway company and the trespasser, no duty of care to avoid injury arises until those in charge of the train have discovered his presence on or dangerously near the track, and have reasonable cause; to believe that injury will result unless the progress of the train is arrested. Although the railway track may be level and straight, so that those; in charge of the train by the exercise of due care might have seen the; trespasser long before they did, still such negligent failure to discernir Ids presence on or near the track will of itself constitute no- actionable; wrong of which he can complain. If the train is running at a high and dangerous rate of speed, in violation of an ordinance, it is me;re negligence, of which the trespasser cannot successfully complain; nor in such a case would any special duty of care arise until the presene;e and apparent danger of the trespasser was actually discovered. Hence, even if those employed on the engine which killed the plaintiff's intestate could have seen him when he was 2,40!) feet from the train, their failure to discover his presence or that of his son until the train was a little more than 700 feet from them would give no right of action. There; was no evidence offered on behalf of the plaintiff below to prove that the employes on the train actually discovered the presence of the deceased or his son on or near the trade until just before the accident happened. The evidence clearly shows'that the presence of the deceased and his son on the track veas not actually discovered by any of the trainmen until the train was within less than 800 foot from them, and that as soon as they were seen ihe danger signal was sounded, the emergency brakes applied, and everything was done which with due care for the safely of the train and its passengers could have been done in the exercise of ordinary care and prudence, and that the train was actually stopped within 2,000 feet or thereabouts from tbe point where the train was when the deceased and his son were first seen upon or near the track. The case made by the evidencie was such as made it the duty of the court to grant the request of the plaintiff in error to direct a verdict in its favor. Deciding, as we do, that the court erred in refusing to direct a verdict for the plaintiff in error, it becomes unnecessary, and would not be profitable, to consider the other 51 errors assigned.