Pratt Coal & Iron Co. v. Davis & Davis , 79 Ala. 308 ( 1885 )

STONE, O. J.

The sum of the facts in this case is, that the appellant corporation owns and operates a railroad from its works in the county, to the city of Birmingham. As it nears the corporate limits of the city, it runs on an embankment five feet high; and at this point the injury complained of was suffered. Crossing the track and adjacent lands at this place, there was no public highway, either by order of the court of County Commissioners, or by prescription or long usage. On either side of the track, the property was owned by private individuals. The railroad had been in operation about three years; and when located and constructed, there was no road, either public or private, at the place. About twelve or fifteen months before the injury, some person, not connected with the railroad, nor in its employ, constructed approaches by which to cross the railroad track, and had laid some planks; but they were thinner and shorter than such timbers usually are, when laid by railroads. After the approaches had been thus constructed, the crossing was frequently used by the public ; but no repairs had been put upon it by the railroad company. There was no testimony that the crossing was of any service to the railroad company, nor was it shown whether the company had ever sanctioned or forbidden its use. The plaintiff, while attempting to cross the track at that place, had his horse’s foot caught between a projecting spike and one of the rails of the track, and the horse was thereby thrown and killed. Whether, under these circumstances, the railroad company is liable for the injury, is the sole question in this cause.

It can not be denied, that railroad companies are required to keep the approaches to their track, and the track itself, at public crossings, in good repair.—S. & N. Ala. R. R. Co. v. McLendon, 63 Ala. 266. With this exception, however, the track is as much the private property of the railroad company, as is the freehold of a mere private citizen. It is no more a public highway, than is the uninclosed domain of the private landholder. No one, not travelling on the train, has a right to be upon it, at points other than the highway crossings, except by permission, express or implied.—Tanner v. L. & N. R. R. Co., 60 Ala. 621. Applying this principle to this case, the railroad company owed no higher duty to the plaintiff, in reference to this crossing,-than did the co-terminous land proprietors, over whose soil this pass-way — private pass-way — had been silently permitted to be used. Whoever avails himself of such tacit permission, accepts it as he finds it, with the limitation, that no man is permitted to set man-traps and pitfalls, as a means of annoying or injuring another.—M. & E. R. R. Co. v. Thompson, 77 Ala. 448; Mo. R. R. Co. v. Long, 6 Amer. & Eng. R. E. Cas. 254; Cauley v. P. C. & St. L. Ry. Co., 40 Amer. Rep. 664; Severy v. Nickerson, 120 Mass. 306; Hargraves v. Deacon, 25 Mich. 1.

The plaintiffs showed no right of recovery, and the City Court erred in the judgment rendered.

Eeversed and here rendered, giving judgment that defendant go hence without day, and recover costs in the court below, and in this court.