MITCHELL v. RAILROAD

Smith Sloane and Bingham, Mitchell Batchellor, for the plaintiff.

Drew, Jordan Buckley, for the defendants on their motion for rehearing. (1) There was no claim on the part of the plaintiff that he was invited by the defendants to go into their yard. He was there, at most, simply by passive. permission, and could not, as we claim, under the most strained construction of the plaintiff's evidence have stood any better than a mere licensee. The defendants did not invite the plaintiff to go into the yard, and he was not there for the purpose of transacting any business with the defendants. He went there from motives of private convenience, in no way connected with business or other relations with the defendants. "One is not invited into danger when his entrance upon dangerous premises is simply not opposed and prevented." Cool. Torts 606. "The fact that the ground was unenclosed and that the deceased, and people at their pleasure, went there without objection, was not an invitation, and from that fact alone no license to go there can be inferred." Clark v. Manchester, 62 N.H. 577. The failure, if there was any, to prohibit the use of the yard in the way that the plaintiff claims he was using it was not an invitation to so use it. Reardon v. Thompson, 149 Mass. 267. In Galligan v. Company, 143 Mass. 527, a suit for damages resulting to a child from falling over an embankment, the court says: "Merely abstaining from driving the child off is not an invitation which would impose any duty or responsibility for the condition of the lot."

Morrissey v. Railroad, 126 Mass. 377, was a suit brought to recover damages for injury to a child while crossing the defendants' track in a foot-path commonly used by travelers to go from one street to houses situated upon the opposite side of the railroad. There was evidence that the whistle was not sounded nor the bell rung in approaching the crossing or path. The court said: "The plaintiff at the time of the accident was a mere intruder and trespasser upon the railroad track. No inducement or implied invitation to him to enter upon it had been held out; he was neither a passenger nor on his way to become one, but was there merely for his own amusement, and was using the track as a playground. The defendant corporation owed him no duty except the negative one not maliciously or with gross and reckless carelessness to run over him."

The defendants claimed that the plaintiff was a trespasser, that they owed him no duty except the negative one not to wantonly injure him after discovering his danger, and requested the court so to instruct the jury, which the court refused to do, but did instruct the jury upon this subject as follows: "They had the right to move it [the engine] over the track, but in doing so they were bound to exercise ordinary care to prevent injury to others who were in its way, whether there rightfully or wrongfully." We submit that the instructions given were wrong upon reason and authority. "One is not under obligation to keep his premises in safe condition for the visits of trespassers. On the other hand, when he expressly or by implication invites others to go upon his premises, whether for business or for any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger, and to that end he must use ordinary care and prudence to render the premises reasonably safe for the visit." Clark v. Manchester, supra; Frost v. Railroad, 64 N.H. 220; Carleton v. Company, 99 Mass. 216; Galligan v. Company, supra; Morrissey v. Railroad, supra; Reardon v. Railroad, supra; Evansville, etc., Co. v. Griffin, 100 Ind. 221.

In Hargraves v. Deacon, 25 Mich. 1, Campbell, J., says: "We have found no support for any rule which would protect those who go where they are not invited . . . from curiosity or motives of private convenience, in no way connected with business or other relations with the occupant." Armstrong v. Medbury, 67 Mich. 250.

Is it not plain upon the authorities cited and numerous others with which the court is familiar, that there is, and must be, a different rule in regard to the duty owing from a defendant to a person invited upon premises and to a person who is a trespasser upon premises? This query is so obvious and plain that it cannot admit of any discussion. I suppose the trial judge fell into the error by undertaking to follow out the very subtle reasoning by which our court in Company v. Company, 62 N.H. 159, and other cases, has undertaken to eliminate the expressions of "gross negligence" and "willful injury," and to substitute therefor the term "ordinary care." The departure may be wise and perhaps an improvement upon the old methods of expression, but it is apparent that it is very likely to mislead not only the jury, but the court, unless it is understood as fully by every one and in the same sense as it was understood by the learned judge who rendered the opinion in that case. Whether the trial judge did or did not intend to state to the jury that the same care was due to a trespasser as to one rightfully upon the defendants' premises, makes no difference. The instructions given, laid down the rule to the jury for their conduct and guidance, that the same care was due to a trespasser as to an invitee. Can the court say that the defendants were not prejudiced by such instructions? It seems apparent that the jury must and necessarily would be misled by the instruction given, because it in terms eliminates all differences of degree as to the care due to persons upon the premises of another. The jury must have understood that it made no difference as to why or how they are there, whether by invitation, passive permission, or against objection; whether they are at a place where the defendant has reason to expect persons may be, or at places where the defendant has reason to expect that no one will be. I suppose no one will contend that the proposition, nakedly stated as in the terms of the trial judge, without further elucidation, illustration, or explanation, is good law. It is a correct statement of the law, and a safe rule to guide the deliberations of a jury, if at all, only when the jury have been made fully to understand that the term "ordinary care" means ordinary care under the particular circumstances of each situation, and it is very difficult to impress this important and essential fact upon the minds of the jury with sufficient distinctness and force to insure to parties justice at their hands, when undertaking to act under any such refined statement of legal principle.

(2) A verdict ought to have been ordered for the defendants. The theory of the law as well as the inherent genius of fair dealing and equity demand that legal rules governing the complex relations of society and business are to be ultimately defined and established by the courts in which we are taught to feel and believe that all justice and equity reside. True, the determination of all questions of fact in proper cases is exclusively for the jury; but it is only within and upon the rules of law given them by the court. The question as to what shall or shall not constitute due care must be a question for the court. The minimum of conduct, so to speak, which shall constitute due care must be prescribed by the court. What does or does not constitute due care under given circumstances, within the rules established by the court as to what shall or shall not constitute due care, is for the jury.

In most jurisdictions it is held that it is the duty of persons entering upon the track of a railroad, even at highway crossings where the public and the railroad have equal right to be, to look and listen for approaching trains. It seems unnecessary to argue that the rule of duty would not be less stringent as applied to persons who went upon the tracks of a railroad in its yard, as mere licensees or trespassers. In the case of Rodrian v. Railroad, 125 N.Y. 526, the court said: "It has, in view of the decisions in this state upon the subject, become a postulate, that due care requires a pedestrian before crossing a railroad track to look in each direction to ascertain whether a train is approaching, and that the mere omission of the statutory signals by trainmen does not relieve the pedestrian from the imputation of negligence, if he fails on his part to look and listen. He cannot omit such a reasonable precaution in reliance upon the performance by the railroad company of its obligation to give reasonable notice of the approach of the train. Whether the duty imposed upon the traveler has been discharged may be, and often is, a question involved in doubt. The evidence may justify opposing inferences. In such case the question is for the jury."

In Railroad Co. v. Houston, 95 U.S. 697, 702, Field, J., says: "The failure of the engineer to sound the whistle or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company's employees in these particulars was excuse for negligence on her part. She was bound to listen and to look before attempting to cross the railroad track in order to avoid an approaching train and not to walk carelessly into a place of possible danger. Had she used her senses she could not have failed both to hear and see the train which was coming. If she omitted to use them and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others." In State v. Railroad, 76 Maine 357, Walton, J., says: "We must, therefore, regard it as settled law in this state that, in this class of cases, whether in form civil or criminal, the burden of proof is upon the party prosecuting to show due care on the part of the person injured or killed, at the time of the accident; or, in other words, that his want of due care did not contribute to produce the injury complained of. . . . It is claimed that no bell was rung or whistle sounded; and that in consequence of this failure, the deceased was not apprised of the approach of the train. The evidence seems to us to preponderate most overwhelmingly in favor of the fact that the bell was rung and the whistle sounded. But suppose they were not, still, it seems to us impossible to believe that the deceased undertook to cross the track in ignorance of the approach of the train. He was a man of mature years, and in the full possession of his faculties. His sight and hearing were good. He lived in the immediate neighborhood of this crossing, and must have been acquainted with the time and speed of the train. . . . If, under these circumstances, the deceased undertook to cross the track in ignorance of the approach of the train, the inference is irresistible that he did not exercise that degree of vigilance which the law requires. He could not have used his eyes nor his ears as the law requires him to use them. The fact must not be overlooked that the train was very near, as otherwise he would not have been struck by it. One in the full possession of his faculties, who undertakes to cross railroad track at the very moment a train of cars is passing, or when a train is so near that he is not only liable to be, but is fact, struck by it, is prima facie guilty of negligence; and, in the absence of a satisfactory excuse, his negligence must be regarded as established. The excuse offered in this case is not satisfactory. The evidence so overwhelmingly preponderates in favor of the fact that the bell was rung and the whistle sounded that we cannot regard the alleged negligence of the railroad company in these particulars as proved. But if we conceive that this was a question of fact for the jury, and that the court has no right to interfere with their finding, still, the inference is irresistible that the deceased did not exercise that degree of vigilance which the law requires, or he would have known of the approach of the train without these signals. . . . But if he did not have such notice; if he drove on to that crossing in total ignorance of the approach of a train; then the conclusion seems to us inevitable that he must have been exceedingly negligent in the use of his eyes and ears."

Cullen v. Canal Co., 113 N.Y. 667, the court says: "It seems very plain that the duty which rests upon a traveler in approaching a railroad crossing, to look and listen, was not discharged by the intestate. It may be said that he was thrown off his guard by not hearing the engine; by the omission of the defendants' servants to ring the bell or sound the whistle; by the fact that engines or trains were seldom moved on this road on Sunday; and, in addition, it is urged that he could not have looked south without partially turning around, and that if he had seen the engine he would have difficulty in turning his wagon in the highway at that point. But we cannot listen to these suggestions without opening the door to excuses which in the end would subvert the rule which, on the whole, tends, we think, to protect life, viz., that the omission of a railroad company to perform its duty, under circumstances like these, does not justify a traveler on a highway in not observing care on his own part by looking and listening before crossing a railroad track in order to escape the danger of moving trains. There is no evidence that the intestate did look or listen. . . . Judgment of nonsuit affirmed."

In the case at bar there is no question about the conduct of the plaintiff. He admits that he did not look toward the engine. He testified, "We were facing the cattle train, my back toward the track on which the engine was." Applying the rule laid down very generally in other jurisdictions to this case, judgment should be ordered for the defendants. Penn. R. R. v. Beal, 73 Pa. St. 504; Reading, etc., R. R. v. Ritchie, 102 Pa. St. 425.

In Fletcher v. Railroad, 149 Mass. 127, Knowlton, J., says: "As a general rule, a person is not in the exercise of due care who attempts to cross a railroad track without taking seasonable precaution to assure himself by actual observation that there is no danger from approaching trains. It has been held in many cases that he cannot properly trust his sense of hearing alone, but must use his sight as well, if it is reasonably practicable so to do. Butterfield v. Railroad, 10 Allen 532; Allyn v. Railroad, 105 Mass. 77; Wright v. Railroad, 129 Mass. 440; Tully v. Railroad, 134 Mass. 499; Wheelwright v. Railroad, 135 Mass. 225. This rule has been held applicable where the plaintiff's attention has been diverted or his view of a coming train has been obstructed by another train which has just passed." Mayo v. Railroad, 104 Mass. 137; Allerton v. Railroad, 146 Mass. 241; Granger v. Railroad, 146 Mass. 276; Marty v. Railway, 38 Minn. 108; Schofield v. Railway, 8 Fed. Rep. 488; Brown v. Railway, 22 Minn. 165; Mo. Pac. Ry. Co. v. Moseley, 57 Fed. Rep. 921.

We would call the attention of the court specially to the case last cited as being almost identical in facts with the case at bar. Moseley, while walking on the track in the company's yard, where people were accustomed to walk daily, was injured by the engine backing upon him, without sounding the whistle or ringing the bell. "It is, however, urged," says Sanborn, J. (p. 925), "that the proximate cause of the injury was the failure of the servants of the defendant to ring the bell of the engine, and not the carelessness of the plaintiff in walking on the track without looking for the engine. It is said that, if the bell had been rung, the plaintiff would have heard it, and have avoided the danger, and that he had a right to rely on the expectation that the defendant's servants would comply with the ordinance and ring the bell, and therefore he should be permitted to recover. This position is untenable.

"First: The question here is not whether the negligence of the defendant or that of the plaintiff is the more proximate cause of the injury, but whether or not the negligence of the plaintiff directly contributed to it. An effect often has many proximate, and many remote, causes. If the negligence of the plaintiff was one of the proximate causes of the injury, — if it directly contributed to the unfortunate result, — he cannot recover, even though the negligence of the defendant also contributed to it. In such a case the plaintiff can recover only when the defendant's negligence is the only proximate cause of the injury. No argument is required to show that the negligence of the plaintiff in this case directly contributed to the injury. It was negligence for him to step upon this track without looking to the west; it was negligence for him to walk upon the track 300 feet without looking behind him. If he had looked to the west or the rear he would have seen the coming engine, and would not have been injured. In the absence of his own negligence, no act of the defendant would have harmed him.

"Second: The negligence of the plaintiff was the more proximate cause of the injury. The proximate cause is not always, nor generally, the act or omission nearest in time or place to the effect it produces. In the sequence of events there are often many remote or incidental causes nearer in point of time and place to the effect, than the efficient moving cause, and yet subordinate to it, and often themselves influenced, if not produced, by it. Thus a defect in the construction of the boiler of an engine may long exist without harm, and yet finally be the proximate cause of an explosion, to which the climate, through the negligence of the engineer, and other incidental causes nearer by years to the effect, may contribute. That negligence is the proximate cause of an injury, from which the injury might and ought to have been foreseen, or reasonably anticipated, under the circumstances, as its probable result. That negligence which sets in motion a train of events that in their natural sequence might and ought to be expected to produce an injury, if undisturbed by an independent intervening cause, is the proximate cause of that injury.

"It goes without saying that injury from engines or cars can be, and ought to be, foreseen or anticipated as the probable result of walking across or upon a railroad track in frequent use, without looking both ways and listening for approaching engines. This is demonstrated by the fact that so universal is this experience that it has become a settled rule of law that such action is negligence. It was the negligence of this plaintiff in walking on the railroad track without looking to the west that put in motion the train of events that led to this disaster. He voluntarily placed himself in a dangerous situation. He knew his danger. The servants of the defendant were not advised of his position or of his danger, and they had a right to rely upon the expectation that he would obey the law and discharge his duty. His greater knowledge imposed upon him the duty of greater care than was required of them. The natural and inevitable result of his continuance upon this track was a collision with an engine, unless some new cause intervened to prevent it. Without the intervention of such cause, the accident was only a question of time. The engine was certain to come. The only chance for his escape was that some independent cause, such as his own care and action, or the defendant's watchfulness, would intervene to turn aside the natural sequence of events, and to take him from the track before the engine passed over it. No independent cause did intervene, and his own negligence was permitted to work out the unfortunate result. It is certain that this result could not have been attained unless the plaintiff had first been negligent. It may be true that it would not have resulted if the bell had been rung. But, if this be so, the failure to ring the bell was not the independent intervening cause; it was entirely dependent for its evil effect upon the precedent negligence of the plaintiff in walking along the track without using his eyes. If he had not been careless, he would not have been on the track, and the failure to ring the bell could not have injured him. The negligence of the defendant's servants was at most concurring or succeeding negligence, which simply failed to interrupt the natural sequence of events, and permitted plaintiff's breach of duty to work out the disastrous result of which it was the primary and efficient cause. The injury was the natural result of the plaintiff's own carelessness, and the jury should have been instructed to return a verdict for the defendant."

The position taken by the court and the reasoning offered to sustained it, in relation to the exercise of due care on the part of the plaintiff in standing in a place which he must have known was dangerous, without exercising any of the precautions which common prudence dictates, seem entirely unique in a judicial statement of the mutual rights and duties of parties. The position taken here, although not stated in so many words, is in fact this: That in a situation where the law imposes upon two individuals the same degree of care, a plaintiff may be excused from the performance of his legal duties upon the assumption that the defendant will perform his. If this is true why is not the converse true, that the defendant may be excused from performing his legal duties upon the assumption that the plaintiff will perform his? If the jury could legally find that Mitchell was in the exercise of ordinary care in placing himself in the dangerous position without looking for the approaching engine, upon the assumption that defendants would not start an engine without the bell, why had not the defendants a right to assume that Mitchell would use his eyes to protect himself, and hence be justified in not ringing the bell? If one party can be excused from the exercise of ordinary care upon the assumption that the other party will exercise ordinary care, that privilege justly and equitably should belong as much to the defendant as to the plaintiff. But, in view of the doctrine laid down by the opinion in this case, that is an exclusive right which belongs to plaintiffs, and defendants must act upon the principle that plaintiffs have the right to omit the exercise of ordinary care upon the assumption that defendants will and must always exercise ordinary care. The reply to this may be that this was a question of fact for the jury. That is true only as to the assertion itself, not true upon any principle of law or equity which should and does enter, theoretically, into the administration of the law. A jury may find for a plaintiff without regard to the evidence, because they are human, and sympathy and prejudice may control them instead of reason and right. Courts, the only protection which the large and important business interests of the country have against the fullest exercise of prejudice and sympathy on the part of juries, also being human, can say that there is evidence sufficient to warrant the finding of a verdict for the plaintiff when there is not. We submit, however, that this is not a question which courts ought fairly to leave to a jury, upon the evidence submitted in this case. The plaintiff confessedly omitted one of the most reasonable and common precautions which ordinary prudence dictates. We feel that our court should adopt the safer and more just rule which obtains in other jurisdictions, and order judgment for the defendants. The question whether the bell was or was not rung was a proper question for the jury. The jury evidently found that it was not rung; and they must also have found that this was negligence on the part of the company. The plaintiff admitted that he did not look toward the engine. Now, in all candor and reason, was it not just as palpably the duty of Mitchell to look out for the engine, as it was the duty of the engineer to ring the bell? Can there be but one answer to this? If this is true, is there no power which can and will intervene between the sympathies of jurors and the rights of litigants, and make it certain that all parties shall have equal justice at the hands of our courts? If there is not, there is a most dangerous and fatal weakness which ought to be remedied.

(3) The plaintiff's counsel argued in the close that if the fireman of the engine, and the conductor of the cattle train, who were in the employ of the company, and also one Moulton, who was not in the employ of the company, had been called by the defendants, they would have given evidence in support of the plaintiff's position and claim. In the opinion the court says: "The evidence showed that the fireman of the Profile and the conductor of the cattle train were so situated that they might have heard the bell if it was rung, and there is no indication that they could have known anything else material and favorable to the defendants, they were the defendants' servants, and they might have been, but were not, called as witnesses. It is a just inference that, if called, their testimony would have been unfavorable to the defendants, in other words, that they could not testify that they heard the bell," citing Cross v. Bell, 34 N.H. 82, and cases cited. It is evident from an examination of the case and opinion that the court omitted entirely to pass upon the question whether such argument by the plaintiff's counsel in relation to Mr. Moulton was competent or incompetent. The authority cited shows conclusively that the matter was not considered by the court. The doctrine laid down in Cross v. Bell is where notice was given to a party to produce books which were in his possession and under his control; and it says that upon neglect to produce them, opposing counsel might fairly argue that if they were produced they would not help the other's case. This may be regarded as an authority authorizing the line of discussion pursued by the plaintiff's counsel, so far as it applied to the conductor of the cattle train and the fireman of the locomotive, but it cannot be an authority which in any sense or by any fair intendment warrants such discussion in relation to Mr. Moulton, who was not in any way connected with the railroad, or under the control of the railroad any more than any other member of the public. Hence the whole of the discussion in the opinion in relation to what might have avoided the exception in Bullard v. Railroad, 64 N.H. 27, is entirely inapplicable; and we submit that, unless the court has come to the conclusion that it is wise to abandon entirely the ground taken in that case and others in the same line, there is no justice or right in withholding from these defendants the benefit of those decisions. We submit that the very able discussion and presentation of the principle laid down in Tacker v. Henniker, 41 N.H. 317, and the reasons given in all of that class of cases in New Hampshire, not only warrant but demand that this verdict should be set aside.