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Teakle v. San Pedro, etc., R. Co

Co., 106 Ga. 870, 33 S. E. 826, it was observed: "Admitting, for the sake of the argument, that the general rule is that a railroad company owes no duty to a trespasser who is upon or dangerously near its track in front of a moving train, until its servants have discovered its presence there, and therefore, so far as his safety is concerned, is not obliged to maintain a lookout in the direction in which the train is moving, we do not think that this could properly be held to be a uniform, fixed, and invariable rule, applicable alike to all cases and under all circumstances Conduct which might, under one set of circumstances, show that all ordinary and reasonable care and diligence had been observed, might, under a different set of circumstances, be insufficient to show an observance of such care and diligence. We think that such a rule could mean no more than this: Taking the locality where the train is running and all the surrounding circumstances, if these in control of the movement of the train have no reason to apprehend that there may likely be a human being on the track in front of the engine, they are under no duty to one who in fact may be there, until they have actualy discovered that he is there. But if, from the locality or surrounding circumstances, there is reason to apprehend that the track in front of the locomotive may not be clear of human beings, then, it seems to us, it is the duty of the employees of the company to keep a lookout ahead of the train, most assuredly so unless they are performing some duty which prevents their looking out upon the track in the direction in which the train is moving." In Sherman & Redfield on Negligence (5th Ed.) § 484, the rule is stated as follows: "The defendant is responsible, not only for what he actually knows, but for that which he is bound to know. It is clear that the frequent statements that contributory negligence is an absolute bar to recovery, except where the defendant's conduct has been 'reckless,' 'willful' or 'wanton,' or even grossly negligent, are not sound. No courts have in actual practice abhered to this imaginary rule. It has been explicity overruled, and, indeed, it has been explained away or disavowed by courts which had previously stated it. Nothing more is really meant by the courts using these phrases than a want of ordinary care, after becoming actually aware of the plaintiff's peril. But it is much better to say so. The more frequent declaration that the defendant is not liable, unless he actually sees or knows the plaintiff's peril, are, however, equally erroneous, as too broad statements of abstract law, however proper they may have been with reference to the particular case under consideration. The rule that a plaintiff is as matter of law negligent if he fails to see what he was bound to look for and ought to have seen is rigidly enforced; and the same rule must, in common justice, be applied to the defendant. And, in fact, it actually is in almost every court where the question is squarely presented. Trainmen may justly assume that travelers will comply with the law in accordance with the general rule upon that point; but if observation has convinced them that, at certain times and places, this assumption is not borne out by the

Teakle v. San Pedro, etc., R. Co

facts, they are not justified in acting upon it. Therefore, while trainmen are not usually bound to foresee or watch for the wrongful presence of any psrson upon the track, even where it is open to an adjoining highway, nor to foresee the wrongful entry of persons upon the cars, yet, if experience has shown that at certain points persons are constantly thus ente: ing upon the track or the cars, such persons, if injured as the proximate result of the trainmen's failure to use ordinay care to keep watch for them, may recover damages if the trainmen could have seen her without difficulty, had they kept a reasonable watch, even though, in fact, they did not see them. Especially should this rule be applied where the railroad company has acquiesced in the use thus made of its property." To the same effect are the following: Bullard v. So. Ry. Co., 116 Ga. 644, 43 S. E. 39; Chamberlain v. Mo. Pac. Ry. Co., 133 Mo. 587, 33 S. W. 437, 34 S. W. 842; Morgan v. Wabash R. Co., 159 Mo. 262, 60 S. W. 195; Va. Mid. R. R. Co. v. White, 84 Va. 498, 5 S. E. 573, 10 Am. St. Rep. 874; Harriman v. Railway Co., 45 Ohio St. 11, 12 N. E. 451, 4 Am. St. Rep. 507; Cassida v. Or. R. & N. Co., 14 Or. 551, 13 Pac. 438; Whalen v. C. & N. R. Co., 75 Wis. 654, 44 N. W. 849; Chicago, B. & Q. R. Co. v. Wymore, 40 Neb. 645, 58 N. W. 1120; H. & T. C. Ry. Co. v. Sympkins, 54 Tex. 615, 38 Am. Rep. 632; Gunn v. Ohio River R. Co., 42 W. Va. 676, 26 S. E. 546, 36 L. R. A. 575; Mason v. Southern Ry., 58 S. C. 70, 36 S. E. 440, 53 L. R. A. 913, 79 Am. St. Rep. 826; McCall v. Railroad, 129 N. C. 298, 40 S. E. 67; Pickett v. Railroad, 117 N. C. 616, 23 S. E. 264, 30 L. R. A. 257, 53 Am. St. Rep. 611; Wooster v. C., M. & St. P. R. R. Co., 74 Iowa, 593, 38 N. W. 425; Conley's Adm'r v. C., N. O. & T. P. Ry. Co., 89 Ky. 402, 12 S. W. 764; Hopk. Pers. Inj. § 87; 2 Tomp. Com. Law of Neg. § 1726. From the authorities we are inclined to adhere to the rule already announced by this court that when for a considerable period numerous persons have been accustomed to walk across or along a railroad track in a thickly settled community or populous city, as shown by the evidence in this case, train operatives ought to be required to take notice of such usage, and to anticipate the probable presence of persons on or near the track, and to observe a reasonable lookout when their attention is not directed to the performance of other duties. On the morning in question some six or seven persons, including the deceased and his companion, were walking in the yard along the tracks in a southerly direction. They were making such use of the track as many others had made of it for a period of eight years. To require the train operatives to take notice of such usage and to regulate their actions accordingly is not unreasonable. Some duty, therefore, was imposed upon the train operatives with respect to observing a reasonable lookout in the direction of the moving train, the extent of which is not for us to say, but is to be determined by the triors of fact under all circumstances of the case.

Notwithstanding such duties imposed on the train operatives, the deceased was himself in duty bound to observe a reasonable

Teakle v. San Pedro, etc., R. Co

lookout for his own safety, and to exercise all reasonable care commensurate with the attending dangers to avoid coming in contact with cars and trains being moved and operated in the yard. He was at a place where cars might momentarily be expected. He had an unobstructed view of the premises, and there was nothing to divert his attention or to prevent him from seeing or hearing the approach of the cars. His act of walking or stepping on the track in front of the moving train without observation, as shown by the evidence, rendered him guilty of negligence as a matter of law. We think this is true whether he was walking between the two tracks east of the main track, or between the main track and the track immediately east of it. In either event, the evidence shows that he stepped upon the switch track in front of the moving train, when but to look, or otherwise to use ordinary care on his part, would have disclosed to him the approach of the train. Mo. Pac. Ry. Co. v. Moseley, 57 Fed. 921, 6 C. C. A. 641; Railroad Co. v. Houston, 95 U. S. 697, 24 L. Ed. 542; Buelow v. C., St. P. & K. C. Ry., 92 Iowa, 240, 60 N. W. 617; Balto. & O. R. R. Co. v. Schroeder, 69 Md. 551, 16 Atl. 212. Such negligence on the part of the deceased was a concurring and contributing cause of the collision, and barred all right of recovery for whatever injury resulted therefrom, upon the principle of law that when the negligence of two persons is contemporaneous, and the fault of each operates directly to cause the injury, neither can recover from the other except for a willful or wanton infliction of the injury. If, therefore, the deceased's death was caused by the train's striking him, his contributory negligence barred recovery, for there is nothing to show that the train's striking the deceased was done willfully or wantonly. The plaintiff, however, both by her pleadings and by her evidence, sought to recover on the theory that the death of the deceased was not caused by his being struck by the train, but by the fire box of the engine, which could have been prevented by the train operatives had reasonable care been observed on their part after the commission of the deceased's negligent acts and after he was struck by the train. In order to render the defendant liable, it was therefore essential to show, as was attemped by the plaintiff, that its servants in charge of the train were guilty of a breach of duty continuing or intervening thereafter which was the proximate cause of the death. There are some authorities which hold that such breach of duty, under the doctrine of last clear chance, can only arise after the consequences of the contributory or antecedent negligence have been discovered. Hence it is urged that the engineer could not have been in fault in his failure to stop the train until he had knowledge that the deceased had been struck and was under the train. But, on an examination of the authorities so holding, it will be observed that most of such rulings were made with respect to actual trespassers or to a wanton or willful infliction of an injury, and, as is said by Shearman and Redfield, at section 484, "we think that the courts which still adhere to the doctrine which confines liability to cases of actual knowledge of

Teakle v. San Pedro, etc., R. Co

peril only apply it to trespassers and not to mere instances of negligence on the part of the plaintiff not trespassing." In 55 L. R. A. 418 may be found an extensive discussion of the doctrine of "last clear chance," and where many cases from nearly all the states are collected and reviewed. They are summarized by the complier on page 465 as follows: "The foregoing review of the authorities, while disclosing much difference of opinion with reference to the ultimate question as to the defendant's liability to one guilty of negligence, under a given set of facts and circumstances, seems nevertheless, when proper distinctions are observed, to show a decided tendency on the part of the courts to apply the doctrine of 'last clear chance' to any omission of duty on the part of the defendant, whether before or after discovering the peril in which the plaintiff or deceased had placed himself, or his property, by his antecedent negligence, if that breach of duty intervened or continued after the negligence of the other party had ceased." This court, in harmony with the great weight of authority, seems to be committed to the rule (when the injured or deceased person was not a trespasser) that the defendant's act of negligence will be regarded as the sole proximate cause of the injury, not only when relating to a breach of duty occurring after the consequences of contributory negligence have been discovered, but also when, in the exercise of ordinary care, such consequences could have been discovered, if a breach of duty intervened or continued after the commission of the contributory negligence. While the breach of duty must be subsequent to the commission of the contributory negligence, yet such breach of duty may be before, as well as after, the discovery of the peril. This principle of law has often been illustrated by cases where the owner of stock was guilty of negligence in permitting it to stray upon the railroad track, and where the liability of the company was made to depend, not only upon the question of whether the train operatives could have avoided the injury after the animal was discovered on or near the track, but also whether, in the exercise of ordinary care, the train operatives could or ought to have discovered it in time to have avoided the injury. So also in cases where one was guilty of negligence in the first instance in going upon the track and by reason of being caught in a frog, or was otherwise rendered unable to escape, and where the railroad company was held liable, not only for an omission of duty on the part of the train operatives after discovering the peril, but also for an omission of duty in not discovering it. In such cases the contributory negligence is deemed the remote, and the defendant's negligence the proximate, cause of the injury. Such is the principle of law which seems to have been announced by this court in the case of Hall v. Railway Co., 13 Utah, 243, 44 Pac. 1046, 57 Am. St. Rep. 726, and in the case of Shaw v. City R. R. Co., 21 Utah, 77, 59 Pac. 552, and is the principle of law stated in the instruction which this court approved, and which was involved in the question decided by the court, in the case of Thompson v. Salt Lake Rapid Transit Co., 16 Utah, 281, 52 Pac. 92, 40 L. R. A. 172,

Teakle v. San Pedro, etc., R. Co

67 Am. St. Rep. 621, and is well illustrated in Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 557, 11 Sup. Ct. 653, 35 L. Ed. 270, and in Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485.

There is much reason for the distinction that the railroad company should not be held liable in case of an actual or conscious trespasser until this position of danger is discovered, and should be held liable in case of one not a trespasser exposed to peril through negligence, not only after the consequences of such negligence have been discovered, but which ordinarily could have been discovered, if there was a breach of duty continuing or intervening after the commission of the contributory negligence. In the one instance the train operatives were not called upon to expect or anticipate the trespass or the presence of persons, and hence owed no duty of lookout or of giving warnings. In such case no duty was imposed on them until the trespasser was discovered in a position of peril. In such case the liability of the company must solely depend upon a breach of duty subsequent to the discovery. If, on the other hand, through a long usage or custom the public has made a thoroughfare of the track in a populous city or thickly settled community though not with any express authority but under circumstances of an implied license, the train operatives are required to reasonably expect and anticipate the probable presence of persons on or near the track at such place, and there is consequently imposed on the train operatives a duty toward such. persons of a reasonable lookout. When, therefore, it is said that the railway company is liable in such case for an omission of duty on the part of the train operatives, not only after the consequences of the injured or deceased's negligence have been discovered, but also for such an omission of duty, as, had it been reasonably preformed, such consequences could ordinarily have been discovered, it necessarily implies the existence of a duty owing by the train operatives toward the injured or deceased person before as well as after the commission of the contributory negligence. In other words, before a person inflicting an injury can be charged with an omission of duty in failing to discover a perilous situation of another, there must be a duty owing from him to the injured or deceased person, which, had it been performed with reasonable care, would have disclosed to him the exposed situation of the person receiving the injury. "If this test," says Mr. Thompson in his Commentaries on the Law of Negligence (volume 1, § 232), "is kept steadily in view, it will lead us out or many difficulties and prevent much confusion." The duty which the train operatives owed the deceased of observing a reasonable lookout existed before he was struck by the train as well as thereafter. The proffered evidence should therefore be considered, not only with respect to duties owing from the engineer after he had knowledge of the deceased's exposed peril, but also with respect to duties owing from the train operatives continuing or intervening after the commission of the deceased's negligence, which, had they been performed with

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