Stewart v. Washington & Great Falls Electric Railway Co. , 22 App. D.C. 496 ( 1903 )

Mr. Chief Jnstiee Ai.vey

delivered the opinion of the Court:

1. With respect to the alleged negligence on the part of the defendant company, a careful examination of the evidence com tained in the bill of exception has brought us to the conclusion that the court below committed no error in. directing a verdict for the defendant. There is no sort of ground shown for contending that there was negligence on the part of the motorman or conductor in running the car at the time and place where the accident occurred. They were acting strictly within the line oí their duty, and did nothing of whi^h the plaintiff could justly complain. Indeed, we do not understand that there is any attempt to impute negligence to them. And it is conceded that the defendant company had full control and right to run their cars over their railroad at such time, and over such of their tracts, as they might deem it necessary for the execution of their work; and that it was no violation of duty to anyone to run their cars upon one track rather than another, when the exigency or convenience of the service undertaken by them rendered it proper, in their judgment, so to do. In operating a double track railroad the owner is bound by no rule that requires that he shall use the right-hand track for the running of cars in one direction, and the left-hand track for the running of cars in the reverse direction. He may run his cars on both tracks in either direction, as the needs of the business may require. But it is contended that if there be change made in the operation of a railroad, either as to the time of running, or the change of direction of trains on several tracks, there should be notice given of such change to employees and others concerned, so that they may pursue their course accordingly. This would certainly be an unusual requirement, and one that might be very embarrassing in the operation of a railroad on important occasions. All parties coming in contact with the operation of a railroad must be presumed to know that the owner has entire control and direction of the course and manner of operation, and so long as there be no contractual obligation or public duties violated, tbe owner must be allowed to exercise his own judgment and discretion in the use of his property. Where the accident occurred the car was not at any stopping place, nor at any crossing of either a public or private way, where signals were required; it was passing where it was entitled to an unobstructed right of way.

The only principle upon which the plaintiff could possibly claim to recover in this action is that where an owner of land induces another, by usage or otherwise, to enter upon or pass over his premises, such owner will be taken to assume the liability that, the premises are safe and fit for the purpose for which they are allowed to be used. In this case it may be assumed that the plaintiff, as he was required to report at the barn by a certain hour in the morning to commence his daily work, and there was no other convenient way for him to reach the barn, was in the exercise of a conceded privilege, distinguishing him from a trespasser, in passing over the right of way of the defendant in order to get to the barn. Such circumstances would seem to be within the principle of the case of Bennett v. Louisville & N. R. Co. 102 U. S. 577, 26 L. ed. 235, and the cases there cited. But this privilege of passage over the right of way of the defendant company, beyond the limits of the city, did not justify the plaintiff in using the railroad tracks as a foot way, and especially not in front of a moving car, which, to a person using ordinary care, could and ought to have been seen at a distance of 350 feet before it reached him. Nail road tracks are never intended as foot ways, or to be used as such; and every person is required to take notice that they are dangerous. In this case, the plaintiff by his own testimony, and that of his witness, the motorman of the car, has shown that the space between the tracks was ample along which he could have walked in safety, and without coming in collision with the passing car.

We discover no error in the ruling of the court below, and we must therefore affirm the judgment. Judgment affirmed.