Wendorf v. Director General of Railroads , 173 Wis. 53 ( 1920 )

Siebecker, C. J.

The trial court held that it is undis-putably established by the evidence that plaintiff at the time of injury was a trespasser on. defendant’s freight train and that defendant was not guilty of any want of ordinary care proximately causing plaintiff’s injury. There is no dispute but that the railroad right of' way at' the place in controversy was used by a large number of pedestrians from Hopkins road to go to and from the manufacturing plants north-of this-road, and that plaintiff and his-companions at the time, in question entered upon the railroad right of" way ■ at, Hopkins road to- gather flowers on the right of-'way and in adjacent- fields-.' The place of - accident is in the country' and there aré rto-résidénces located in the immediate vicinity; ' In', view' of all the conditions it- must be held that when plaintiff used' the right of way at- the time in question-as a footway he was traveling thereon as á licensee.' This''gave him-the' privilege' of one traveling over it in the wáy if 'Was' being used by pedestrians to the knowledge of the railroad company, but as such a licensee he had no right to go onto trains on the tracks for play, nor to expose himself to the dangers of passing trains. It is manifest that plaintiff at the time of the accident ivas not using this right of way in the manner pedestrians did when using it as a foot-path. He diverted from his travel with his companions to mount the cars of a freight train which was making a short stop in its course northward, to engage in play on the cars as brakeman. It is obvious that when the}'- mounted the freight cars to engage in play they were not in the relation of licensees to the railroad company, but were trespassers. Such act of plaintiff and his companions was a wrong of an aggravated nature and most dangerous, and the railroad company owed them no active duty to protect them unless its agents and servants had knowledge of their presence on the train and of their perilous position. Anderson v. C., St. P., M. & O. R. Co. 87 Wis. 195, 58 N. W. 79. Counsel for plaintiff stresses the claim that-the facts of the instant case bring it within the authority of Carmer v. C., St. P., M. & O. R. Co. 95 Wis. 513, 70 N. W. 560. It has frequently been held that when railway tracks are used with the acquiescence of the company by pedestrians as a crossing or foot-path the pedestrians are licensees and it becomes the duty of the railway company to keep a reasonably vigilant lookout to prevent accidents and injuries to such licensees, but it does not owe this measure of duty to trespassers. The Carmer Case is clearly one where the child used the railroad grounds as a licensee and was injured while crossing between cars of a train which stood an hour or more on a sidetrack at the village station. Such crossing was being used by adults and school children in their course of travel from one side of the tracks to the other in the village, to the knowledge and with the acquiescence of the railway company. Under the facts and circumstances and the surrounding conditions shown in that case, this court held that the injured child there was a licensee and that the company owed him the duty of exercising active vigilance to protect him from injury. These facts and conditions manifestly distinguish that case from the one before us. The evidence adduced upon the trial fails to disclose anything tending to show that the trainmen were aware that plaintiff and his companions were present on the cars or on the right of way. It appears that the train was started in the usual manner at the required time. It is considered that the evidence wholly fails to show any negligence by defendant’s agents and servants which proximately caused plaintiff’s injuries.

The contention that defendant is liable for its default in not having built a cattle-guard at the intersection of its right of way and Hopkins road, upon the ground that the accident to plaintiff “was occasioned in whole or in part” by the absence of such cattle-guard, under the provisions of sec. 1810, Stats., is not sustained. The observation in a similar case (Vaillant v. C. & N. W. R. Co. 163 Wis. 548, 158 N. W. 311) is applicable to the facts in this case:

“The claim that the presence of a legal fence [here- a cattle-guard] on the right of way would have intercepted the boy in the progress of his course and have prevented him from catching the moving train and thus he would have avoided the injury, is based on inferences highly speculative, uncertain, and purely conjectural. It cannot be said, in the light of common experience, that such a fence [cattle-guard] would have intercepted or diverted the boy in his undertaking to reach the . . . train.”

It is clear that the absence of a cattle-guard at the margin of Hopkins road and the railroad right of way did not cause, nor was it the means of producing, plaintiff’s injuries. ' We do not consider that a train of railroad cars on a track can be classed with turntables and like machinery as alluring and attractive to children, so as to put the burden on railroad companies to carefully guard them against danger to small children., St. Louis S. W. R. Co. v. Davis (Tex.) 110 S. W. 939, and cases cited on p. 945.

By the Court. — Judgment affirmed.