Opinion
May 18, 1943. —
June 16, 1943.
APPEAL from a judgment of the circuit court for Eau Claire county: CLARENCE E. RINEHARD, Circuit Judge. Reversed.
For the appellants there were briefs by Bender, Trump McIntyre of Milwaukee, and oral argument by Rodger M. Trump.
For the respondents there was a brief by Ramsdell, King Linderman of Eau Claire., and oral argument by Bailey Ramsdell.
This is an action commenced May 28, 1942, by Donald Shea, Jr., a minor, by Donald Shea, his guardian ad litem, and Donald Shea, plaintiffs, against Chicago, Milwaukee, St. Paul Pacific Railroad Company, and Henry A. Scandrett, Walter J. Cummings, and George I. Haight, as trustees, defendants, to recover for personal injuries suffered by Donald Shea, Jr., while crawling under a freight car of one of defendants' trains on the 18th day of September, 1941. From the judgment entered on December 9, 1942, in favor of plaintiffs, defendants appeal.
Donald Shea, Jr., seven years of age, lost his left arm between the elbow and shoulder at about 7:50 a.m. on September 18, 1941, when he crawled under a freight car which was part of one of defendants' trains in the city of Eau Claire. The train, consisting of about twenty-three cars, was brought in about 7:30 a.m., and when it stopped it blocked a footpath between the Chippewa bridge and Barstow street. The conductor cut the train so as to leave an opening at the footpath about forty feet wide. A switching crew then took over the train. The head brakeman switched three cars next to the engine into the house track. The conductor proceeded to the opening at the footpath. While he was there a schoolgirl, about thirteen years of age, crossed on the footpath. The train was then connected by the conductor and he signaled the train to go ahead.
Seven children, including Donald Shea, Jr., came along the footpath from the north. Their ages ranged from six to thirteen years. They were on their way to school. They testified that when they saw the train it was coupled together and was stationary. They did not see the conductor and he did not see them. The children stopped at the foot of the six steps leading to the track level. The footpath was used by children going to and returning from school, and pedestrians generally. The engine was about ten cars east of the footpath. Donald Shea, Jr., stated that he was going to crawl under the train. His sister and some of the other children warned him against doing so. He had traveled over this path the previous school year and observed trains there. He had attended some safety classes in school. He proceeded up the steps and crawled under the freight car, looking back once and then continuing. The train started to move. The conductor had traveled about three car lengths to the east when he heard the children scream. He signaled for the train to stop and the brakeman, who was farther east, pulled the air brake, stopping the train. The conductor and brakeman removed the boy from under the car where he had been injured.
At the close of the testimony, defendants moved for a directed verdict and objected to questions being submitted to the jury covering negligence of defendant, which motion and objections were overruled. The jury found the defendant causally negligent in, (1) failing to keep a diligent lookout for persons who might be on the railroad tracks at the public crossing in question, and (2) in respect to giving such persons timely warning to get off the tracks and avoid danger; and found the plaintiff Donald Shea, Jr., causally negligent in going into a place of danger, and apportioned the contributing negligence forty per cent to the plaintiff and sixty per cent to the defendant. After motions, the court ordered judgment on the verdict.
Respondents contend that the question in this case is whether there is credible evidence to sustain the findings that the conductor of the train was negligent as to lookout and warning. In passing on this question, it is necessary to determine what right, if any, the respondent had to place himself in the position he was in and what duty the conductor failed to perform to be guilty of causal negligence.
Allowing for the tender age of the respondent, it must be conceded that he had no right to crawl under the train even though it was stationary at the time he attempted to do so. He had never seen others attempt to crawl under a train, and he was warned by his associates that he should not do so. There is no evidence from which a jury could reasonably say that the conductor had knowledge of the presence or position of the respondent. The footpath was blocked, and no question is raised as to the right of appellants to close this path for the purpose for which it was closed. It cannot be said that appellants were required to keep a watchman at this crossing to physically restrain pedestrians from placing themselves in danger. The conductor was at the crossing at the time he coupled the cars and gave the signal to go ahead. The train started to move shortly after it was connected. If respondent had attempted to go between the cars by going over the coupling, or to have crawled upon the car to get over, he would have been a trespasser. Louisville N. R. Co. v. Noble, 265 Ky. 200, 96 S.W.2d 433; Kaproli v. Central Railroad of New Jersey, 105 N.J. Law, 225, 143 A. 343. While respondent could properly be a licensee in using this footpath for the purpose of crossing the track when no train was upon it, it cannot be said that he was a licensee when he attempted to crawl under the train. He was using it for a purpose that could not reasonably be foreseen or anticipated, and in so doing he became a trespasser.
There is no evidence of wilful and intentional injury or active negligence on the part of the defendant. It owed no active duty to protect respondent in the act that he was attempting. Klix v. Nieman, 68 Wis. 271, 32 N.W. 223; Schug v. Chicago, M. St. P. R. Co. 102 Wis. 515, 78 N.W. 1090; Wendorf v. Director General of Railroads, 173 Wis. 53, 180 N.W. 128; Frederick v. Great Northern R. Co. 207 Wis. 234, 240 N.W. 387, 241 N.W. 363.
We conclude there was no evidence to sustain the finding of negligence on the part of the defendant.
By the Court. — Judgment reversed, and cause remanded with instructions to dismiss plaintiffs' complaint.
WICKHEM and MARTIN, JJ., dissent.