Newell v. Detroit, Grand Haven & Milwaukee Railway Co. , 187 Mich. 697 ( 1915 )

ON REHEARING.

Kuhn, J.

The argument on the rehearing granted in this case was had in conjunction with a rehearing granted in Risbridger v. Railroad Co.,¹ opinion appearing in 152 N. W. 961. After a careful review of the elaborate briefs submitted by counsel, and a full consideration of the arguments had at the hearing, we have been unable to come to any other conclusion but the one arrived at in the opinion heretofore written. In our opinion, the facts in this case clearly bring the situation within the rule announced in Sturgis v. Railway Co., 72 Mich. 619 (40 N. W. 914); Clark v. Railroad Co., 113 Mich. 24 (71 N. W. 327, 67 Am. St. Rep. 442); Winnie v. Railway Co., 160 Mich. 334 (125 N. W. 351).

It is the contention of counsel that this conclusion is at variance with the opinion of this court in Morrison v. Carpenter, 179 Mich. 207, 214 (146 N. W. 106, Am. & Eng. Ann. Cas. 1915D, 319). But we think that that case is readily distinguishable from the case now under consideration. For there the court said that if a licensee uses a well-defined, openly, and continuously used way, he takes only such risks as have existed during the time of using the same. But this does not extend to additional risks on the path made afterwards by the licensor without the knowledge of the licensee. And it was said that if'the licensor interfered with the path by making it more dangerous, he should give notice to the licensee or guard the dangerous place so made.

In the instant case there is no question but that the path used by the plaintiff’s decedent at the time he met his death was in the same condition that it had been in, and that he was not confronted with unusual danger at that time. As we have before said, the plaintiff’s decedent was upon the track without any invitation, express or implied, and the most that can be said is that he was there by tacit permission only. The plaintiff’s decedent, walking longitudinally along the track, was in a place of known danger. The use he was making of the track was simply by sufferance, which amounted to no more than a mere naked license, and imposed no obligation on the railroad company to provide against the danger of accident other than not to do him wilful injury.

The distinction between the situation in this case and the case of Huggett v. Erb, 182 Mich. 524 (148 N. W. 805), was commented on by this court in the case of Hoover v. Railway Co.,¹ 154 N. W. 94, where Mr. Justice Steere, in speaking for the court, said, in referring to the Huggett Case:

“The latter case lays down no new doctrine and changes no previous rule, but, as applied to the case then under consideration, reiterates and points out the distinction, relating to trespass, involving danger of injury, between infants non sui juris and adults or those of sufficient age to realize the nature of their conduct, care for themselves, and. be accountable for their acts.”

It is also urged that under the facts shown in this record the case should have been submitted to the jury on the theory of the defendant being guilty of gross negligence. It will be unnecessary to determine whether or not a railroad company might not be guilty of gross negligence, as it has been held in many jurisdictions, in operating a train, even over its private right of way, at a high and dangerous rate of speed, unlighted, and without proper warning signals, in a densely populated community, over tracks known by the company to have been frequented by pedestrians. In the instant case no such situation confronts us, for the place where decedent met his death was not such a place, but on the contrary was away from the populated areas. We do not'think that the doctrine of gross negligence could be said to apply to such a situation, unless the peril of the deceased had been discovered. See Strong v. Railroad Co., 156 Mich. 66 (120 N. W. 683); Knickerbocker v. Railway Co., 167 Mich. 596 (133 N. W. 504); Putt v. Railway Co., 171 Mich. 216 (137 N. W. 132); Fike v. Railroad Co., 174 Mich. 167 (140 N. W. 592).

Being constrained to come to the same conclusion we reached before, judgment is affirmed.

Brooke, C. J., and Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.

1 Publication withheld, pending rehearing.

1 Decided September 29, 1915.