The plaintiff alleges that when she was injured she was rightfully upon the defendant's tracks. To recover she must have established this essential element of her case by a preponderance of the evidence. Fay v. Hartford Springfield Street Ry. Co.,81 Conn. 330, 335, 71 A. 364.
There was no testimony tending to show that the *Page 629 railroad company had ever expressly consented that its property at this place should be used by pedestrians traveling along its tracks. Upon the contrary, it appears that the defendant had posted notices close by, which in unmistakable terms forbade such use of its premises.
The evidence as to the extent, character, and continuance of the use of this crossing was not such that the jury could have reasonably found that the plaintiff, when she was injured, was attempting to cross the railroad tracks under an implied invitation from the railroad company.
The owners of the Chappell land had the right to use this crossing in going to and from their dock property. Every person having business relations with the Chappell Company at this point also had the right to cross the railroad tracks at this place, and the railroad company could not interfere with such use of its property. But the plaintiff was not on the Chappell land or the railroad tracks on business connected with that company or with that of the defendant. She was using the tracks for her own convenience for the purpose of obtaining a shorter path from her home to Bank Street, where she was going.
The fact that the defendant company had planked the crossing at this point had no pertinence as to the question of an implied invitation. The plaintiff, when injured, was not going to or coming from the Chappell's docks, where this crossing ended. She had come from her home and was using the railroad tracks for the purpose of reaching Bank Street. Pedestrians going along the tracks were not invited to use these planks as a crossing, and the defendant was not bound to expect them there. June v. Boston Albany Railroad,153 Mass. 79, 82, 26 N.E. 238.
In order to maintain an action for an injury to person *Page 630 or property by reason of negligence or want of due care, there must be shown to exist some obligation or duty toward the plaintiff, which the defendant had left undischarged or unfulfilled. This is the basis on which the cause of action rests. There can be no fault, or negligence, or breach of duty, where there is no act, or service, or contract, which a party is bound to perform or fulfil. All the cases in the books, in which a party is sought to be charged on the ground that he has caused a way or other place to be incumbered or suffered it to be in a dangerous condition, whereby an accident and injury have been occasioned to another, turn on the principle that negligence consists in doing or omitting to do an act by which a legal duty or obligation has been violated.
No duty is imposed by law on the owner or occupant to keep his premises in a suitable condition for those who come there solely for their own convenience or pleasure, and who are not either expressly invited to enter, or induced to come upon them by the purpose for which the premises are appropriated and occupied, or by some preparation or adaptation of the place for use by customers or passengers, which might naturally and reasonably lead them to suppose that they might properly and safely enter thereon. Sweeny v. Old Colony Newport R. Co., 92 Mass. (10 Allen) 368, 372, 373.
In Chenery v. Fitchburg R. Co., 160 Mass. 211,35 N.E. 554, where the plaintiff was run down by a train at a private crossing, it was held that he could not recover if a trespasser or mere licensee. In the opinion is the following language (p. 213): "As against a bare licensee, a railroad company has a right to run its trains in the usual way, without special precautions, if the circumstances do not of themselves give warning of his probable presence, and he is not seen until it is too late." In June v. Boston Albany Railroad, *Page 631 153 Mass. 79, 26 N.E. 238, where the deceased, a mere licensee, was run down by a train, it was held that he could not recover. Holmes, J., in giving the opinion of the court, speaks thus (p. 82): "At most he [the plaintiff] was no more than a licensee. As towards him, there was no negligence on the part of the defendant or its servants in not providing a signboard, gate, or flagman, and there was no duty to whistle, although in fact the engine was whistling. The defendant had a right, as against him, to run its trains upon its tracks at such speed as it found convenient, and it was for the deceased to take care that he was not hurt by their doing so. There may be cases in which even unintended damage done to a licensee, by actively bringing force to bear upon his person, will stand differently from merely passively leaving land in a dangerous condition. But something more must be shown than that trains are run in the usual way upon a railroad, where the place does not of itself give warning of his probable presence, and when he is not seen until it is too late."
There is a marked distinction between the duty which a man owes to persons who come upon his premises as bare volunteers or licensees, and those who come as customers or otherwise, in the course of business, upon the invitation, express or implied, of the occupier. As to the latter, the occupier is bound to exercise reasonable care to prevent damage from unusual danger, of which the occupier has or ought to have knowledge; and this, though the transaction had already been completed, and the plaintiff had returned only for some incidental (if proper and usual) purpose connected with it. As to the former, the party takes his own risk, and, so long as there is no active misconduct toward him, no liability is incurred by the occupier of the premises by reason of injury sustained by a visitor on his premises. Pomponio v. New York, N. H. H. R. *Page 632 Co., 66 Conn. 528, 537, 34 A. 491; Rooney v. Woolworth,74 Conn. 720, 723, 724, 52 A. 411. See alsoO'Brien v. Union Freight R. Co., 209 Mass. 449,95 N.E. 861, 36 L.R.A. (N.S.) 492, and cases cited in notes upon pages 492 to 503, inclusive; Neice v. Chicago Alton R. Co., 254 Ill. 595, 98 N.E. 989, 41 L.R.A. (N.S.) 162, and cases cited in notes on pages 162 to 167 inclusive.
In our own case of Nolan v. New York, N. H. H.R. Co., 53 Conn. 461, 474, 4 A. 106, this court said: "The rate of speed, the arrangement of the tracks, the meeting of trains, and the absence of a fence, are not circumstances which are entitled to much more weight when combined than when taken singly; and so far as they do strengthen each other the same fatal vice attaches, namely, that the supposed duty has for its sole object the protection of wrongdoers, or, at least, of persons who have no excuse for being in the way of passing trains."
Can the plaintiff be permitted to avail herself of the rights belonging to the Chappell Company and to those having business relations with it? May she, although forbidden to do so, enter onto its right of way at any time and place, for her own pleasure or convenience, and claim such protection as a matter of right? Clearly not. If she does so, what duty does the railroad company owe her? Clearly the same duty that any other owner of property would owe her under the same circumstances. How may she be permitted to avail herself of the rights belonging to another, who stands in a different relation to the person against whom the right is asserted, without doing violence to every principle of law upon which reciprocal rights, duties, and obligations are based? Palmer v. Oregon Short Line R. Co.,34 Utah, 466, 485, 98 P. 689, 16 Amer. Eng. Ann. Cas. 235. *Page 633
It is a general rule that a railroad company owes no duty to a person who is unlawfully upon its premises when he is not seen until it is too late to avoid injury.O'Brien v. Union Freight R. Co., 209 Mass. 449,95 N.E. 861; Chenery v. Fitchburg R. Co., 160 Mass. 211,35 N.E. 554; 33 Cyc. 769-771, and cases cited in note 78, p. 771.
There is nothing to show that the engineer of the passenger-train could have stopped the locomotive in time to have avoided the accident after he discovered that the plaintiff was in a perilous position. From Mrs. Whitney's own statements it is apparent that the approaching train must have been within a short distance of her, when, without looking, she stepped in front of the locomotive from behind the post where she was standing to allow the freight-train to pass.
Upon the evidence Mrs. Whitney was not even a licensee, and therefore had no case.
It is true that questions of negligence and contributory negligence are ordinarily questions of fact for the jury, yet when the undisputed evidence is so conclusive as to one of the controlling issues in a case, the question is one of law and not of fact for the jury. Fay v. Hartford Springfield Street Ry. Co., 81 Conn. 330, 338,71 A. 364; Cottle v. New York, N. H. H.R. Co.,82 Conn. 142, 72 A. 727; Elliott v. New York, N. H. H.R. Co., 84 Conn. 444, 447, 80 A. 283. As the verdict was unsupported by proof of the defendant's negligence, it should have been set aside.
There is error and a new trial is ordered.
In this opinion the other judges concurred.