Francis H. (Francis Hermann) Bohlen.

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(1882) ; Kelly v. P. & R. R. R.. 30 L. I. 140 (Phila. Dist. Ct. 1873). aider
■when the child is in custody of an adult, Benson v. R. R., 98 Cal. 45 (1893).
See as to railroad's liability, where the engineer sees an obstruction on the
track but does not realize its nature, mistaking the helpless trespasser for an
inanimate object, R. R. v. Dxinnazvay. 93 Va. 29 (1806); Murch v. R R 7^
Hun 601 (N. Y. 1894), companv not liable :—rowfra Keyser v. R. R.. 66 Mich.
390 (1887); R. R. V. St. John, 5 Sneed 524 (Tenn. 1858). So if the tres-
passer, though an adult, is obviously as helpless from some other cause as
an infant he is entitled to the same care. Tanner v. R. R., 60 Ala. 621 (1877).
plaintiff thrown from horse in deep cut; R. R. v. Kotoski, too 111. 383 (1902),
trespasser on high trestle, attacked bv vertigo; R. R. v. Hankerson, 72 Ga
182 (1883) ; there is of course no duty other than of giving warning owed
to trespasser till not only his presence but his helplessness is known, Frase'^



EASTERN KENTUCKY RY. CO. V. POWELL 39I



EASTERN KENTUCKY RAILWAY CO. v. POWELL.
Court of Appeals of Kentucky, 1895. 17 Ky. Law Rep. 1051.
Paynter, J. The only duty which a railroad company owes a
trespasser is to use care to save him after he is discovered in his
perilous position. It is not required to use care to anticipate and
discover the peril of such person. As this court has so often stated
the duty of railroad companies with reference to trespassers on their
tracks, it seems to us the best way to restate it by quoting from for-
mer opinions of this court.

It was said in Kcutiicky Central R. R. Co. v. Gastincan's Adm'r,
83 Ky. 122: "A railroad company has the right to the exclusive use
and occupation of its yard and track, except at crossings or such
places as the public are by law authorized to use; otherwise it could
not i)ropcrly perform its duties to the public. It is not recjuired to
anticipate the intrusion of others ; and one who enters upon them
without right does so at his peril, and in case of injury cannot re-
cover unless it was wantonly inflicted after the danger was discov-
ered. Its dutv to such a person or trespasser is merely negative ; it
must not. when it knows of the peril, act maliciously or with a dis-
regard of obvious consequences. It is not required to use care to
anticipate and discover the peril to such a person, but only to do_ so
after the discovery of the danger. Until then no legal duty is im-
posed upon it. because no one by a wrongful act can impose a duty
upon another."

In L. & N. R. R. Co. v. Howard's Adm'r, 82 Ky. 217, the
deceased lost his life at night on the track, away from any town or
road crossing, and the court said : "In the case before us the com-
pany had the exclusive right to the use of the road at the place
where the appellee's intestate lost his life, and we see no reason for
making the company responsible unless it should appear that those
in charge of the train, after discovering the condition and danger of
the party exposed, could, by the exercise of proper care, have
avoided the injury."

In Conlex's Adm'r v. C. N. O. & T. P. Ry. Co., 89 Ky. 406.
the court, recognizing the rule as stated, said : "We recognize and
repeat the rule, that the operators of a train are ordinarily under
no obligations to look out for trespassers ; that as a rule they have
the exclusive right to their track and have the right to presume that
no person will trespass upon it, are, therefore, under no obligations
to look out for them." The court in this as in other cases stated
the exception to the rule as to public crossings, cities, etc.

In Broivn's Adm'r v. L. & N. R. R. Co., 17 Ky. Law Rep. 145.
the court said : "So that a trespasser and wrongdoer cannot be heard
to argue and say that the train was too heavy or machincry_ insuffi-
cient!^ or that the train was improperly manned. Tlicre is this right,
however, that belonged to the decedent as one of humanity, and that



V R. R.. 81 Ala. 18:; (1886) ; Poole v. N. C. R. R., 8 Jones 340 (N. C. 1861).
See extreme case. R. R. v. Boszirll, 82 Va. 93,2 (1887^ and cf. Batcher v.
People's Ry. Co.,, 215 Pa. 478 (1906).



392



EASTERN KENTUCKY RY. CO. V. POWELL



is, that it was the duty of the railroad company, after becoming
aware of his danger, to use all reasonable care to avoid his injury."^

Many cases of this court could be cited which enunciate the
principle found in the cases cited, and from which the foregoing
quotations are made.

In Shackelford v. L. & N. R. R. Co., 84 Ky. 43, it was said:
"Railroad trains must give the customary signals at public places
and public crossings ; the failure to do so is negligence. But this is
required for the safety of passengers, trainmen and the public using,
and who have the right to use, the track at such public ways, and not
for the purpose of protecting those who, as trespassers, may be
crossing or using the track elsewhere."

From the doctrine stated, in the cases cited, the plaintiff, being
a trespasser, could not complain that there was no headlight on the
engine. If those in charge of the train were not required to antici-
pate his presence where the accident occurred, it follows that the de-
fendant was not required to do anything to facilitate the discovery
of his danger. There is no question that the train did not have a
whistle and bell, with which to give proper warning of the train's
approach at public crossings, etc.

The only question in this case was as to whether those in charge
of the train could have, with reasonable care, after they discovered
plaintiff's danger, prevented the injury.

The whole of the plaintiff's testimony was directed to the issue
as to whether Irwin had the authority, express or implied, to oper-
ate the hand car on the occasion of the accident, as to his care for
the protection of plaintiff, and as to whether there was a headlight
on the engine.

There was not a scintilla of evidenceJ-n the record even teadj

"" '-WhrleinF^lten'^aid IhaF^frespasser can only recovernOT injured by
wanton or wilful misconduct, Tanner v. Louisville & N. R. Co., 60 Ala. 621
(1877) ; Haley v. Kansas City M. & B. R. Co., 113 Ala. 640 (1896), or when
reckless disregard for his safety is shown equivalent to an intent to injure
him, Chicago & Eastern Illinois R. Co. v. Hedges, 105 Ind. 398 (1886). any
lack of care to avoid causing injur}' to a trespasser after knowledge of his
helpless peril is usually regarded as wanton, wilful or reckless misconduct
toward him, Haley v. Kansas City M. & B. R. Co., 113 Ala. 640 (1896);
Martin v. Chicago & N. W. R. Co., 194 111. 138 (1902); Krenzer v. Pitts-
burgh, C, C. & St. L. R. Co., 151 Ind. 587 (1898) ; Rosenthal v. A^. Y. etc.
R. R., 112 App. Div. (N. Y.) 431 (1906), per McLaughlin, J., p. 435; Tanner
V. Louisville & N. R. Co., 60 Ala. 621, trespasser thrown from his horse
upon track; Pannell v. Nashville, F. & S. R. Co., 97 Ala. 298 (1893), yard-
master, seeing a trespasser caught between two cars, gave no warning, but
allowed the train to be operated as though no one was in peril ; but see
Hoberg v. Collins, Lavery & Co., 80 N. J. L. 425 (1911), where the driver
of the defendant's wagon struck with his whip at a boy stealing a ride, the
boy fell off and was run over by a trolley car, held that the defendant was
not liable — as to distinction between mere negligence and intentional injury
or wanton and wilful misconduct see Bolin v. Chicago, etc., R. Co., 108 Wis.
ZZ?) (1900). It is often said to be the railroad's duty to use every practi-
cable means to prevent injury to a trespasser discovered in a place of danger,
St. Louis &c. R. Co. V. Townsend, 69 Ark. 380 (1901); Garza v. Texas
Mexican R. Co., 41 S. W. 172 (Tex. Civ. App. 1897), boy asleep under car;
Mathews v. Chicago R. L & P. R. Co., 63 Mo. App. 569 (1895) ; Baltimore
e-r Ohio R. Co. v. Welch, 114 Md. 536 (1911); Omaha R. Co. v. Cook, 42
Nebr. 577 (1894), but see Griswold v. Boston & M. R. Co.. 183 ^ilass. 434
(1903), p. 435; Aiken v. Holyoke St. R. Co., 184 Mass. 269 (1903) ; Raden v.
Georgia Railroad, 78 Ga. 47 (1886). In some jurisdictions a trespasser help-
less through some fault, as v;il fully going to sleep on the track, Raden v.
Georgia Railroad Co., 78 Ga. 47 (1886). or drunkenness, is regarded as guilty



GUINN, ADMINISTRATOR V. DEL. & ATL. TI£L. CO. 393

ing to show that the injury could have been prevented after plain-
tiff's danger was discovered, nor was there any testimony offered
for the purpose of showing that it could have been so prevented.

As appears from the record, the injury to plaintiff resulted from
his own wrong and negligence, and except for which it would not
have occurred. -

GUINN, ADMINISTRATOR, v. DELAWARE AND ALTAX-

TIC TELEPHONE CO.

Court of Errors and Appeals, New Jersey, 1905. 72 A'^. /. L., 276. ^

SwAVZE, J. William C. Guinn, a lad thirteen years of age, wai ,^, .
killed by contact with a guy wire charged with electricity. The ^ fj*
wire was of a character used for telephone construction — copper
wire of a tensile strength of two hundred and fifty pounds. It was
attached to a pole on which were strung wires of the defendant
alone. There was no proof except by inference that the defendant
erected or owned the pole, or had attached the wire. In answer to
an interrogatory, the defendant stated that the wire had been in-
spected ^lay 27th or 28th. 1904, about three weeks before the injury.
No testimony was oft'ered by the defendant. The trial judge left it
to the jury^o sajjwJietherthe wire was put there by. the_seryants of
of COntltiuTng contributorynegTtgrnce, and so barred when an innocent tres-~
passer might recover; R. R. v. Hankerson, 61 Ga. 114 (1878) ; Smith v. Nor-
folk & S. R. Co., 114 X. Car. 728 (1894) ; R. R. v. Cragin, 71 111. 177-181
(1873) ; see also, IVoods v. Tipton, 128 Ind. 289 (1890), and Bagcard v. Con-
solidated Traction Co., 64 X. J. L. 316 (1899) ; contra, Williams v. Southern
Pac. R. Co., 72 Cal. 120 (1887) ; St. Louis &c. R. Co. v. Tozi'usend, 69 .^rk.
380 (1901) : and cf., II' heeler v. Grand Trunk R. Co., 70 X. H. 607 (1900) ;
and Black v. New York, N. H. & H. R. Co., 193 Mass. 448 (1907).

'Accord: Tracer v. R. R., 81 Ala. 185 (1886), failure to keep a lookout;
Ward V. R. R., 25 Ore. 433 (1894); Williams v. R. R., 72 Cal. 120 (1887);
Terra Haute & I. R. R. v. Graham, 95 Ind. 286 (1883), similar facts; Phila. &
R. R. R. V. Hummell, 44 Pa. 27S (1863) ; Phila. & Reading R. R. v. Spearen,
47 Pa. 300 (1864), no warning of train's approach; Tcnncnbrock v. R. K., ^g
Cal. 269 (1881) ; Campbell v. R. R., 55 Kans. 536 (1895) ; Yarnall v. R. R., 75
Mo. 575 (1882) ; Ling v. R. R., 165 Fed. 813 (1908) ; contra, Xorth Carolina
and Texas; Bogan v. R. R., 129 X. C. 154 (1901 ) ; Pickett v. R. R., 117 X. C.
616 (1895), held that trespasser may recover when injured by breach of the
duty, admittedly owed to passengers, to keep a lookout ; Galveston, etc., R. R.
v. Olds, 112 S. W. 787 (Tex. Civ. App.. 1908), railways owe to trespassers duty
to look out for them; Houston R. R. v. Adams, 44 Tex. Civ. App. 288 (1906),
this however only enures to the. benefit of infants and others without fault
on the track, adult wilful trespassers are barred by their continuing contrib-
utory fault. Since a street railway has merely a right to use the highway
in common w itli tlie pulilic. travellers upon their tracks are not trespassers
and the railway is bound to keep a lookout at all points and not merely at
street crossings; Ind. Trac. Co. v. Kidd, 167 Ind. 402 (1906) ; R. R. v. O'Don-
nell, 207 111. 478 (1904). See as to the differing rights and duties of travellers
on highway crossing steam railroads and street railway tracks; steam rail-
roads. Runyon v. R. R.. i Dutcher, 556 (X. J., 1856) ; Telfer v. R. R.. 30 X. J.
L., 188 (1862) ; street railzcays, Conrad v. R. R., 70 X. J. L., 676 (1904) ; J'roo-
man v. R. R., 70 X. J. L., 818 (1904). A railroad engineer is bound to keep
a lookout for trespassers when approaching places where the presence of
the public, though unauthorized, is to be expected, Pa. R. R. v. Lezcis, 79
Pa. 3T, (1875^. hut cf. Hummell v. R. R., supra; Ga. Pac. R. R. v. Lee, 92 Ala.
262 (1890), persons crossing unfenced tracks in or on outskirts of towns and
cities; see Bait. & Pot. R. R. v. Cumberland, 176 U. S. 232 (1899). persons so
crossing though in no defined path said not to be trespassers; Chicago, B. &
Q. R. R. V. Jl'ymore. 40 Xeb. 645 (1894). plaintiff crossing track to get to sta-
lion wliilc technically a trespasser is one whose presence is to be expected
and her safety provided for, such trespassers being habitual; Halex v R. R.,



394 GUINN, ADMINISTRATOR V. DEL. & ATL. TEL. CO.

the defendant. A\'e think there was sufficient evidence to warrant
the inference that such was the fact.

The injury was caused by the guy wire breaking and falUng on
an electric Hght wire belonging to another company. The broken
end fell in the grass in a field belonging to Gulick. Across this field
people were accustomed to travel without objection, but as far as
appears without other right. The boy's body was found still in con-
tact with the guy wire shortly after the shock. It does not appear
that he had any right to be on Gulick's property except such as may
be inferred from the facts stated. The contention of the defendant
is that it was under no duty to the decedent for the reason that he
was a trespasser on Gulick's property, or at best a mere licensee.

The liability of the defendant rests upon the fact that it was
maintaining wares which might become charged with a deadly cur-
rent of electricity. New York and New Jersey Telephone Co. v.
Bennett, 33 Vroom 742; Brooks v. Consolidated Gas Co., 41 Id. 211.
The duty to exercise care is established as to travelers upon the,
highway and employes of the defendant or of another company who
in the exercise of their rights are likely to come in contact with the
wires, and of persons who are lawfully in a place of proximity .to_
the wires. The question presented in this case is whether the duty
exists also as to third persons who are not at the time in the exercise
of any legal right. The principle underlying the case is stated by Chief
Justice Beasley, in Van Winkle v. American Steam Boiler Co., 23
Vroom 240 (at p. 247), to be that in all cases in which any,^ejsgii„
undertakes the performance of an act which, if not done with_care_^
and skill, will be highly dangerous to the persons or lives ol^orig„ar^
more persons, known or unknown, the \a.w,^ipso facto ^ i mposes as a
public duty the obligation to exercise such care and skdl. -~

The test of the defendant's liability to a particular person is
whether injury to him ought reasonably to have been anticipated.
In the present case the guy wire w^as stretched over an open field,
across which people were accustomed to travel without objection by
the landowner. The adjoining field was used as a ball ground. It
was probable that if the guy wire broke some one crossing the field
would come in contact with it. That whoever did so was a tres-
passer or a bare licensee, as against the landowner cannot avail the
defendant. If a bare licensee, he would still be there lawfully. If a
trespasser, his wrong would be to the landowner alone, not a public
wrong nor a wrong to the defendant.

The case differs from one where a trespasser or licensee seeks
to recover of the landowner. A landowner may in fact reasonably
anticipate an invasion of his property, but in law he is entitled to
assume that he will not be interfered with. His right to protect his
possession and to use his property is paramount. It is these con-
siderations which led this court to deny the liability of the defendant
in the turn-table cases. Turess v. Nezv York, Susquehanna and
Western Railroad Co., 32 Vroom 314; Delaware, Lackawanna and
Western Railroad Co. v. Reich, Id. 635, and in Friedman v. Snare &
Triest Co., 42 Id. 605.

The general rule is that a person is liable for those results of
his negligence which are reasonably to be anticipated ; the exemption

113 Ala. 640 (1896), plaintiff' walking on path on right of way near track, such
trespassers are to be expected in populous rural districts as well as in towns
and cities; Broun v. R. R., 7.3 N. H. 568 (1906), semhle.



LYNCH V. NURDIN 395

of the landowner from liability as to trespassers and licensees is
necessary to secure him the beneficial use of his land, but no reason
exists for extending this exemption to the case where the rights of
the defendant have not been interfered with.

There is no proof that the defendant had any right to maintain
the pole and wire, but even if it had the deceased is not shown to
have interfered with the defendant's rights. The right to maintain
the pole and wire did not involve the right to have the wire swing
loose or occupy another portion of the field. Whoever interfered
with the pole and wire in place might be a trespasser, but he would
not be a trespasser upon the defendant's rights if he came in contact
with the wire elsewhere.

The trial judge, in his charge, rested his refusal to nonsuit upon
the theory that the defendant had no right to stretch the guy wire,
and he therefore refused to charge that the mere fact that the boy
was there as a licensee defeated the plaintiff's right to recover. We
think that even if the defendant had a right to stretch the guy wire,
the plaintiff' might still be entitled to recover. There was no error
in the refusal to charge.^



(b) Infant Trespassers.



LYNCH V. NURDIN.

In the Queen's Bench, 1841. i Q. B. 29.

Lord Denman, C. J.

It was an action of tort for negligence by the defendant's ser-



'Accord: Daltry v. Media Electric, etc., Co., 208 Pa. 403 (1904), p. 412,
boy playing inside of gate of vacant suburban premises shocked by live wire
left hanging near driveway after electric lights had been removed from the
residence, and see also Mullen v. U'ilkes-Barre, etc., Co., 38 Pa. S. C. 3,
(1909) ; Davoust v. Alameda, 149 Cal. 69 (1906), city, supplying electric light
for profit, held liable to plaintiff injured by live wire lying across path in va-
cant lot which the public were accustomed to use. "She had a right to be
where she was, at least against every one except the owner of the lot ; and the
city, itself a mere trespasser, is in no position to raise the question as to what
duty the owner of the land owes to a trespasser," McFarland, J., p. 74;
Wilson v. A)n. Bridge Co.. 74 N. Y. App. Div. 596 (1902), defendant dis-
charged a large stream of boiling water over the land of an adjacent owner,
which as was well known people were in the habit of using as a path ; held,
that it was immaterial whether plaintiff, scalded thereby, was a trespasser
on the adjacent land or a licensee.

Where the place is one not likely to be used by the public, even a tres-
passer owes a duty only to those coming thereto under authority of the
owner, since there is no reason to anticipate the presence of any others.
Hector v. Electric Co., i6r Mass. 558 (1894) ; Illingsworth v. Boston El. Co.,
161 Mass. 583 (1894). plaintiff' licensee and so duty owed; Greenville v. Pitts,
T07 S. W. 50. Tex. (1908). no reason to anticipate presence of policeman on
roof though lawfully there to detect crime: all cases of uninsulated wires
strung over roofs: Gross v. So. Chic. Ry.. 73 111. .\pp. 217 (1897), plaintiff
riding on top of high barrel car struck by defendant's trolley wire strung
across street. See St. Joseph Ice Co. v. Bertch, 22 Ind- App. 491 (1904), a land
owner held not liable to one, occupying adjacent land without authority of
owner thereof, for fall of building, ruinously out of repair thereon ; aliter
to one occupying adjacent property by permission or invitation of owner;
Lxnds V. Clark,^ij, Mo. App. 74 ('1883').



396 LYNCH V. NURDIN

vant, in leaving his cart and horse half an hour in the open street at
the door of a house in which the servant remained during that
period. * * =;=

Witness for the defense proved that, after the servant had been
about a quarter of an hour in the house, the plaintiff and several
other children came up, and began to play with the horse, and climb
into the cart and out of it. While the plaintiff' was getting down
from it, another boy made the horse move, in consequence of which
the plaintiff" fell, and his leg was broken as before mentioned. On
this undisputed evidence (for there was no cross examination of
the witnesses), the defendant's counsel claimed the Judge's direction
in his favour. * * * j\Iy learned brother, however, thought him-
self bound to lay all the facts before the jury, and take their opinion
on that general point. They found a verdict for the plaintiff. It is
now complained that such direction was not given. * * *

It is urged that the mischief was not produced by the mere
negligence of the servant as asserted in the declaration, but at most
by that negligence in combination with two other active causes, the
advance of the horse in consequence of his being excited by the other
boy, and the plaintiff's improper conduct in mounting the cart and
so committing a trespass on the defendant's chattel. On the former
of these two causes no great stress was laid, and I do not apprehend
that it can be necessary to dwell at any length. For if I am guilty
of negligence in leaving any thing dangerous^ in. a^ place where I
know it to be extremely probable that some other person wTIT un-
Justffiably^et it in motion to the injury of a third, and if that injury
should be so brought about, I presume that the sufferer might have
redress by action against both or either of the two, but unquestion-
ably against the first. * * * g^^^ jj-j |-|-,g present case an
additional fact appears. The plaintiff himself has done wrong: he
had no right to enter the cart, and, abstaining from doing so, would
have escaped the mischief. Certainly he was a cooperating cause
of his own misfortune by doing an unlawful act: and the question
arises, whether that fact alone must deprive the child of his remedy.
The legal proposition, that one who has by his own negligence con-
tributed to the injury of which he complains cannot maintain his
action against another in respect of it, has received some qualifica-
tions. * * * Ordinary care must rnean that degree of care which
may reasonably be expected from a person m tbie plamtiff's situation :
and this would evidently be very small indeed ^itno^young a child.
But this case presents more than the want of care: we find in it the
positive misconduct of the plaintiff an active instrument towards the
effect. * * * Bird v. Holhrook, 4 Bing. 628, is a decisive au-
thority against the general proposition that misconduct, even wilful
and culpable misconduct, must necessarily exclude the plaintiff' who
is guilty of it from the right to sue. I remember being present at
a trial at Warwick before Lord Chief Baron Richards, where the
same law prevailed.

But the question remains, can the plaintiff then, consistently
with the authorities, maintain his action, having been at least equally
in fault. The answer is that, supposing that fact ascertained by_ the
jury, but to this extent, that he merely indulged the natural instinct



KREIXER V. STRAUBMUELLER 397

^of a child in amusing^ himself with the empty cart and deserted
norse. then we think that jJiiLilefendant cannot be permitted to avail
hi mself "o T"^Tar""lact. The most blameable cafeIessfre5S~T5'f~his
servant having tempted the child, he ought not to reproach the child
with yielding to that temptation. Jle has been the real and only
cause of the mischief, lie has been deficient in ordinary care: the
child, acting without prudence or thought,J}aSj however, shown these
qualities in as great a degree asHBe could be expected to possess
them. His misconduct bears no proportion to that of the defendant
which produced it.

For these reasons, we think that nothing appears in the case
which can prevent the action from being maintained. It was properly
left to the jury, with whose opinion we fully concur.

Rule discharged,^



KREIXER V. STRAUBMULLER.
Superior Court of Pennsylvania, 1906. 30 Pa. Super Ct. 609.

Opinion i!V Henderson, J. :

It is a well established rule that those controlling property on,
or immediately adjacent to, a public highway must have regard to
the reckless and thoughtless tastes and traits of childhood. The
owners of the premises are required in such cases to anticipate that
children may use the highway, and in so doing be exposed to any un-