Glass v. Memphis & Charleston Railroad

McCLELLAN, J.

1. Whether the spur-track of the Memphis & Charleston Railroad Company was rightfully in what was known as Water street, is not a material inquiry in this case. Railway companies may, and frequently do, acquire-the right to lay their tracks in the streets of towns and cities, and, unless the question is raised in a direct proceeding to oust them of the use for this purpose of the streets, the presumption is, as declared by the City Court, that they are in rightful occupancy thereof.

2. “The mere fact that persons living in the neighborhood of a railroad track have become accustomed to use it to walk upon, without any objection on the part of the railroad company, does not in any manner alter or change the duty of the railroad company to such persons. They are simply trespassers.” • And evidence of such custom is irrelevant and inadmissible.-— Central K. R. of Ga. v. Brinson, 70 Ga. 207; s. c., 19 Amer. & Eng. R. R. Cases, 42, and notes; Hoffe v. C. M. & St. P. Railway Co., 61 Wis. 357; s. c., 19 Amer. & Eng. R. R. Cas. 14, and notes; M. & C. R. R. Co. v. Womack, 84 Ala. 149; C. & W. Railway Co. v. Meadows, present term; Mason v. M. P. Railway Co., 6 Amer. & Eng. R. R. Cases, 1.

3. Evidence of the habits of the person injured, in respect of trains, whether those of a prudent and careful person or the reverse, is never admissible in actions sounding in damages for personal injuries. — So. R. R. Co. v. Rollins, 41 Am. & Eng. R. R. Cases, 316; Chase v. Maine Central R. R. Co., 19 Amer. & Eng. R. R. Cases, 356; B. & O. R. R. Co. v. Colvin, 32 Amer. & Eng. R. R. Cases, 160; C. R. I. & P. R. R. Co. v. Clark, 15 Amer. & Eng. R. R. Cases, 261.

4. The fact that the south end of Wells street, the north-end of which as originally laid out and used lay along where the ravine now is, was still open and in use as a street, was not relevant to any issue in this case. It is uncontroverted that, at the time plaintiff’s intestate was killed by being knocked from the railway trestle which spanned this ravine, *587 there was no street either in or crossing the ravine, and no mode of crossing it except upon the timbers of the trestle, and no way open by which vehicles or pedestrains could pass down what had once been but had long since ceased to be the northern part of Wells street. What influence the intestate’s right to be on the south end of that street could have upon her or the company’s rights and duties with respect to this trestle, is not conceivable.

5. It is not negligence in itself for one to cross over a railroad track wherever he may have occasion to do so. Before making the attempt, however, he must know that no train, engine or car is approaching in such proximity as to render the undertaking dangerous. If he fail to use his senses to this end — if, ordinarily, he omit to stop and look and listen for trains before going upon the track for the purpose of passing over it — his act in so doing is a negligent one per se; and if injury result to one thus on the track in consequence of not having taken this precaution, enjoined upon him by the commonest dictate of prudence and care, it is well settled in our jurisprudence that he can not recover for the mere negligence of the railway company. — L. & N. R. R. Co. v. Webb, 90 Ala. 185 ; Leak v. Ga. Pac. Railway Co., Ib. 161. And itfollows, of course, that one having this right, with this care and caution, to cross the track of a railway whenever and wherever he has occasion to be on the other side of it, who takes this precaution, goes on the track for the purpose of crossing it with all the assurance his senses properly exercised can give him that it is safe to do so, and yet, from some cause against which he could not guard, is injured, he may recover. For the law does not contemplate that railroads, road-beds and tracks shall impede travellers, whether along highways or across country, any more than their physical conformation may of necessity involve; and while the traveller may be negligent in attempting to cross without proper circumspection, he is never a trespasser, because he is never without this qualified right to pass over.

6. But precisely the reverse of all this is true with respect to one, whether in town or country, and whether the track be upon an embankment, on a level, or in a cut, or through a tunnel, or over a trestle, who gets on a railroad for the purpose of passing, not across it, but along its course, and does proceed along its course, using it as a road. Such one is essentially and at all times a trespasser, if he be not there by the sanction of the company; and he is as much a trespasser whether he stop and look and listen before going upon the track or not; nor is his attitude in this respect in any degree relieved by *588 the utmost diligence and care to avoid injury while proceeding on his way. This may secure his safety, but it renders him none the less a trespasser. He, unlike one who merely crosses-the track, and to whom it is only an impediment to progress which he has a right to overcome prudently and carefully, uses that of which the company is entitled to the exclusive use; and his act is in the nature of a conversion, a wrongful, misappropriation, of another’s property to his own purposes. In all reason, and by every analogy which the law affords, he must act upon his own peril; the company owes him no duty except that which every man owes to every other man whether a trespasser or not — to do no act, nor omit anything, after his presence and peril become known, the doing or omission of which would tend to inflict injury upon him. J here are cases,, and among them-that of S. & N. Ala. R. R. Co. v. Donovan, 84 Ala. 141, which appear to hold that those operating a railroad in a town or city through a thickly populated district, where there is occasion for people to pass along the track, and a usage to that effect, owe the duty of keeping a vigilant lookout for such persons, at such places. This doctrine does not, in our opinion, consist with that declared in the succeeding cases of M. & C. R. R. Co. v. Womack, 84 Ala. 149, and Ensley Railway Co. v. Chewning, 93 Ala. 24; nor with the general doctrine, now thoroughly established in this court, that one who is injured in consequence of being negligently on a railroad track can not- recover unless the railroad employes are guilty of such gross negligence or recklessness as amounts to wanlonness, or an intention to inflict the injury, and that this wantonness and intention to do wrong can never be imputed to them, unless they actually know, not merely ought to know, the perilous position of the person on the track, and with such knowledge fail to resort to every reasonable effort to avert disastrous consequences. And this doctrine applies as well to densely populated neighborhoods in the country, and to the streets of a town or city, as to the solitudes of the plains or forests; with this exception : where a railway is built in a street or public road, in such way as to be incorporated with and to become a part of the road-bed of the street or roád, as where the ties and rails of the railway are imbedded in the street or road so that as nearly as practicable the top of the rails alone is visible, and at the same level as the surface of the roadway — a manner of construction illustrated in what are known as street railways — where, in other words, it is manifest that the railway is intended to be and to be used as a part of the street or road in which it is embodied, the public has not only the right to cross it, but also-the right to pass *589 along and use it as any other part of the street or road, being careful to look for and avoid approaching trains or cars; and in view of this right in the public, operatives of trains and cars on such railway are under a duty to keep a lookout tor persons exercising it. But where the railway is not thus incorporated with the street or road, the public has no more right to use it than if it were not in a street or road at all. It is clear on the undisputed evidence in this case that the track of the defendant company at the point of the casualty counted on is not within this exception.— Ga. Pac. Railway Co. v. Lee, 92 Ala. 262; R. & D. R. R. Co. v. Vance, 93 Ala. 144; L. &. N. R. R. Co. v. Trammell, 93 Ala. 350; C. R. & B. Co. of Ga. v. Vaughan, 93 Ala. 209.

That these adjudications establish that there can be no recovery in such cases for the mere negligent failure to see the trespasser in time to avoid injuring him, can not be doubted. A duty for a violation of which no redress is afforded is an anomaly; it can not in any legal sense be said to be a duty at all. Hence it must be that train-men are under no duty to keep a lookout for such persons, since confessedly their failure to do so involves no liability upon their employers, and warrants no redress to the injured persons in consequence of such failure. And the principle declared in Donovan's Case must be confined to persons exercising the undoubted but qualified right to cross a railroad track. For such persons a lookout must be maintained, since they are in no sense trespassers, having always the right to pass over the track, and doing so, -when due care is observed by them, not at their own peril, but upon the implication that the company will, in recognition of their right, keep a lookout for them, and conserve their safety. Persons travelling on the track, having under no circumstances a right to do so, can never assume that railroad employés will be on the alert to discover them in their wrong-doing. The latter are authorized to presume that the road-bed will not be thus wrongfully intruded upon and used, and are justified in acting upon this presumption. It is only when the presumption of the absence of trespassers is displaced by the knowledge of their presence, that the duty to observe all reasonable care and prudence to avoid injuring them arises and is upon train-men.

7. In the case at bar, the person killed did not intend and was not attempting to simply cross the track, but she was upon and proceeding along the track over a high trestle of considerable length. To this effect the evidence is free from conflict. Hence, whether she stopped and looked and listened before entering upon the track for approaching trains, whether, *590 had she done so, she would have been apprised of the approach of the train which killed her, and whether she was attentive and diligent to discover the approach of a train while proceeding along the track, are each and all wholly immaterial inquiries. No possible solution of any one or all of them could have affected her status with respect to the train, or the duties of the train-men with respect to her. Had she seen or heard the train approaching, and gone upon the trestle, from which there was no escape short of outracing the train to the further end of it, in front of the moving cars, this would, according to the intimation in Georgia Pacific Railway Company v. Lee, supra, have been such recklessness on her part as would have defeated recovery by her administrator, even had the trainmen themselves been guilty of gross negligence amounting to wantonness; but it is not pretended that she either saw or heard the train before going on the trestle, and it is to be doubted whether she ever became aware of its proximity till stricken by it. But she was wrongfully at the place where she was killed. She was a naked trespasser, wholly regardless of the precautions she may or may not have taken before going on the track, or while proceeding along it. Her negligence and wrong in being there would, as a matter of law, and to be so declared by the court, be a complete defense in this case, so far as defendant’s liability is attempted to be rested on the mere negligence of its employés; and on the other hand, such negligence would not preclude a recovery, if the defendant’s employés were guilty of that wantonness or recklessness which is imputable from wrongful acts or omissions on their part after they discovered her peril; and this though she had been wholly lacking in care and circumspection at the moment of going on the track, and while proceeding along it. So that it is manifest that the ruling and charges of the trial court in respect of her supposed lack of diligence and prudence in going on the track without stopping and looking and listening for a train, and in proceeding along the track without keeping a vigilant outlook for its approach, are mere abstractions in the case, which, whether correct in themselves or not, can exert no influence upon the facts of either appeal. Of this character are charges 2, 6, 8 and 9, given at the instance of the defendant, and charge 4 refused to plaintiff. In some, of the charges referred to, given for defendant, and in those numbered 1, 4, 5, 7 of defendant’s series, as also in the court’s .general charge, the propositions, that the railroad company was not a trespasser in the street, that the intestate was a trespasser on the company’s track, that the defendant owed her no duty but that of resorting to all reasonable effort to *591 conserve her safety after her peril was discovered, that her presence on the trestle was negligence per se, and that the .plaintiff was not entitled to recover unless the jury found that the train-men, after becoming aware of the intestate’s position and danger, failed to exert themselves to avert the disaster, &c., are clearly stated in accordance with the foregoing opinion; and the assignments of error by the original appellant, which proceed on a different theory as to the principles of law obtaining in the premises, are untenable.

8. If it be supposed that charge No. 3, given for defendant, is faulty in that it declared “there is no evidence before the jury of any pecuniary damages to the plaintiff by reason of the death of his intestate,” the infirmity will not avail on this appeal; because, the jury having expressly found that pecuniary damages were inflicted upon the plaintiff, and returned a verdict therefor, this declaration, if erroneous, would not have involved injury to the appellant in chief. — Donovan v. L. & N. R. R. Co., 79 Ala. 429; Carrington v. L. & N. R. R. Co., 88 Ala. 472.

9. The cross-appellant, the railroad company, has withdrawn all the assignments of error originally made by it, except that one which is addressed to the refusal of the trial court to instruct the jury to return a verdict for defendant if they believed the evidence. This charge should never be given when the evidence on a material point is conflicting, or when, whether conflicting strictly speaking or not, it affords a legitimate inference adverse to the party requesting the instruction.. The pivotal inquiry in this case was, whether defendant’s employés did all in their power to avert the disaster after becoming aware of the intestate’s presence and peril. The affirmative charge was asked by the defendant on the theory, that they fully acquitted themselves in this regard; but we are not prepared to say that the jury were not authorized from all the circumstances in evidence to infer the contrary, and hence our conclusion that the charge was properly refused.

The foregoing considerations determine all the questions reserved on both appeals against the respective appellants; and the judgment on each appeal is affirmed.

Walker, J., not sitting.