NEW YORK CENT. & H. R. R. CO. v. PRICE, 159 F. 330

BROWN, District Judge. This is a writ of error brought by the railroad company to review the rulings of the Circuit Court in an action of tort. The plaintiff’s intestate, a boy 6y¿ years old, was playing upon an open lot in East Boston. The lot adjoined the defendant's railroad and was unfenced. The boy struck a plaything so that it fell on or near the track, and ran after it upon the defendant’s land, where he was struck by a freight train, receiving injuries from which, after conscious suffering, he died in four or five hours.

The declaration charged: “That the defendant negligently failed to maintain a suitable fence along its tracks as required by the laws of Massachusetts. That said railroad tracks at said place ran at grade by a lot of land where were situated the homes of many young children, and where the children were accustomed to play.

That the said tracks were in other l-espeets so situated with regard to said land on which children were accustomed to play that the defendant knew, or ought to have known, that they were a source of peculiar danger and inducement to young children in the absence of such a fence as was required by law.” The Massachusetts statute relating to the fencing of railroads is found in Revised Laws of Massachusetts, c. 111, § 120: “Every railroad corporation shall erect and maintain suitable fences, with convenient bars, gates or openings therein, upon both sides of the out ire length of its railroad, except at the crossings of a public way or in places where the convenient use of the road would be thereby obstructed, and except at places where, and so long as, it is specially exempted from the duty of so doing by the board.

Such an exemption granted prior to the first day of August in the year eighteen hundred and eiglity-two shall not be revoked except upon new proceedings had under the provisions of this section, notice of which shall be given to the corporation interested, and published once in each of three successive weeks in a newspaper published in each county in which the land is situated. The corporation shall also construct and maintain sufficient barriers, where it is necessary and practicable so to do. to prevent the entrance of cattle upon the road.

A corporation which unreasonably neglects to comply with the provisions of this and the following

section shall, for every such neglect, forfeit not more than two hundred dollars for every month during which the neglect Continues; and the Supreme Judicial Court shall have jurisdiction in equity to compel the corporation to comply with such provisions, and, upon such neglect, to restrain and prohibit it from crossing a highway or town way, or from using any land, until such provisions shall have been complied with.” The railroad company, now plaintiff in error, contends that this statute imposed upon the railroad company no duty to the plaintiff’s intestate, and that such duty as is imposed upon the railroad company exists only in favor of adjoining owners and occupants.

It relies upon Byrnes v. Boston & Maine Railroad, 181 Mass. 322, 324, 63 N. E. 897, 898, in which it was said: “But the omission to fence does not render a railroad liable except as against adjoining owners; and if a horse escapes from the highway on to an unfenced lot, and thence to the railroad where it is injured, the owner cannot recover unless there was reckless or wanton misconduct on the part of those in charge of the train.” Maynard v. Boston & Maine Railroad, 115 Mass. 458, 15 Am. Rep. 119; McDonnell v. Pittsfield & North Adams Railroad, 115 Mass. 564; Darling v.

Boston & Albany Railroad Company, 121 Mass. 118. It was also said: “The object of the statute is expressed to be to ‘prevent the entrance of cattle upon the road,* and cases that have arisen under it are all eases of this kind.” The plaintiff in error also cites Morrissey v. Eastern Railroad Company, 126 Mass. 377, 30 Am. Rep. 686; Sullivan v. Boston & Albany Railroad Company, 156 Mass. 378, 31 N. E. 128; Gay v. Essex Electric Street Railway Company, 159 Mass. 238, 34 N. E. 186, 21 L. R. A. 448, 38 Am. St. Rep. 415; Daniels v. New York & New England Railroad Company, 154 Mass. 349, 28 N. E. 283, 13 L. R.

A. 248, 26 Am. St. Rep. 253; Dalin v. Worcester Consolidated Street Railway Company, 188 Mass. 344, 74 N. E. 597. We cannot escape the force of the case of Byrnes v. Boston & Maine Railroad, 181 Mass. 322, 63 N.

E. 897, by disregarding as dictum the expression “the omission to fence does not render a railroad company liable except as against adjoining owners.” Assuming that the facts were such that no obligation to fence existed under the terms of the Massachusetts statute, and that the case so held, nevertheless, as an additional reason for its decision, the court construed the statute, and held that the obligations imposed by it were solely in favor of adjoining-owners.

Decisions of the Supreme Court declare the rule: “Whenever a question fairly arises in the course of a trial, and there is a distinct decision of that question, the ruling .of the court in respect thereto can, in no just sense, be called mere dictum.” Union Pacific Company v. Mason City Company, 199 U. S. 160, 166, 26 Sup. Ct. 19, 50 L. Ed. 134; Railroad Companies v. Schutte, 103 U. S. 118, 20 L. Ed. 327. In Smiley v. Kansas, 196 U. S. 447, 455, 25 Sup. Ct. 289, 290, 49 L. Ed. 546, it was said: “It is well settled that in eases of this kind the

interpretation placed by the highest court of the state upon its statutes is conclusive here. We accopt the construction given to a state statute by that court. St. Louis, Iron Mountain & St. Paul Railway Company v. Paul, 173 U. S. 404, 408, 19 Sup. Ct. 419. 43 L. Ed. 746: Missouri, Kansas & Texas Railway Company v. McCann. 174 U. S. 580, 586, 19 Sup. Ct. 755, 43 L. Ed. 1093; Tullis v. Lake Erie & Western Railroad Company, 175 U. S. 348, 20 Sup. Ct. 136, 44 L. Ed. 192.

Nor is it material that (lie state court ascertains the meaning and scope oE the statute as well as its validity by pursuing a different rule of construction from what wo recognize.” It may be conceded that there is ground for doubt whether the construction placed upon this statute by the Massachusetts court is not narrower than its terms require.

It would be a reasonable construction to say that fences are required not only for the exclusion of cattle and for the benefit of adjoining owners, but for a notice and signal of danger, and as an obstacle and preventive of harm in urban districts frequented by children. One of the learned justices in Williams v. Great Western Railway Company, L. R. 9 Excheq. 157, said of a statute imposing a general duty of this character: “It is not for us to speculate on what was the precise intention of the Legislature when they required that there should be a gate or stile on a footpaih crossing on a level.

It is sufficient to say that the defendants have neglected to comply with the enactment. * * * Then can it be inferred with reasonable probability that the accident occurred by reason of that negligence so as to make that a question for the jury?” See, also, Hayes v. Michigan Central Railroad Company, 111 U. S. 228, 240, 4 Sup. Ct. 369, 28 L. Ed. 410; Baltimore & Potomac Railroad Company v. Cumberland, 176 U. S. 232, 20 Sup. Ct. 380, 44 L. Ed. 447; Atchison, T. & S. F. R. R. Co. v. Reesman, 60 Fed. 370, 373, 9 C. C. A. 20, 23 L. R. A. 768.

Nevertheless there is a considerable conflict of decision as to the proper construction of statutes of this kind, and there are in other states decisions supporting the views of the Massachusetts court. We find it unnecessary to review these decisions, however, since we are of the opinion that the construction of the Massachusetts statute is a local question upon which we accept the decision of the local court.

The defendant in error also contends that, even if not required by statute to maintain a fence, the defendant below was, upon common-law principles, negligent in failing to do so under the conditions proved in this case. The contention is that, because children were accustomed to play in the vicinity of the railroad tracks, “the defendant was bound to anticipate that children will be children,” and to take precautions to prevent them from thoughtlessly running upon its tracks.

We think it doubtful if the testimony in this case was sufficient to show that the lot upon which the boy was playing, and from which he ran upon the tracks, was a playground or a place on which numbers of children were accustomed to play.

There was evidence that children in considerable numbers were in the habit of playing on the railroad property and along the tracks; but examination of the record does not show that the testimony was directed to the specific proposition that considerable numbers of children were in the habit of playing on the unfenced lot, and of coming upon the tracks from this lot, so that the railroad company had special reason to regard this unfenced lot as an accustomed place of ingress for children thoughtlessly trespassing upon its tracks.

Assuming, however, for the present, the sufficiency of the proof to establish the fact that this unfenced lot was a playground from which thoughtless children were in the habit of going upon the .tracks, we have still an important question: Did this cast upon the railroad company the legal duty of erecting a fence to exclude such trespassers from its tracks, and does a failure to erect a fence make the railroad company guilty of negligence?

It is conceded by the defendant in error that “the Massachusetts rule appears to be that a railroad owes no duty to a trespasser, even though he be guilty only of a technical trespass, save not to injure him by wanton, willfu1 recklessness.” It is contended, however, that the degree of care which the railroad company must exercise towards trespassers upon its right of way is a question to be settled upon general principles of law, and that this court will apply its own rules and not what may appear to be the Massachusetts rule.

But as we view this case, there was no ground for holding that the railroad company was negligent in the operation of the freight train, or in a failure to discover and avoid the child after he came upon the track. The child ran quickly upon the track, and there is no contention that he could have been seen and avoided. The substance of the claim is that the railroad company was negligent 'in not keeping the child off its premises and preventing it from becoming a trespasser.

The. defendant in error has cited no case, nor has any case come to our attention, which holds a railroad company liable for injuries upon the ground that it was its duty, in the absence of a statute, to build a fence or erect barriers, at places other than crossings, to exclude persons, whether children or adults, from its tracks.

It may be true that in urban districts there is such Manger to children as to justify legislation for their protection, imposing special burdens on railroad corporations, and to justify a court in construing a statute which in general terms requires a fence as intended for the protection of persons as well as cattle. In the absence of legislation, however, there is difficulty in assigning legal grounds for casting upon the railroad company, rather than upon parents or the public, the duty of safeguarding children.

The question of the duty to anticipate the presence of youthful trespassers, and to guard against accident to them, was before the Circuit Court’in McCabe v. American Woolen Co., 124 Fed. 283, affirmed by this court 132 Fed. 1006, 65 C. C. A. 59. The defendant was charged with negligence in not fencing a mill trench on its lands, for the reason that children were known to be in the habit of frequenting the banks of the trench.

The learned judge observed (page 287 of 124 Fed.): “We think, therefore, that this canal was an object of such a character that both from the reason of the thing and the customs of the community, the defendant was entitled to assume that the plaintiff’s natural guardians would protect him from any dangers attached thereto, as they easily could and ought to have done,” and held that the action could not be maintained. Dangers attend the operation of many other enterprises, and there are many places where the intrusion of a thoughtless child is a possibility.

This general subject has received careful consideration from the Honorable Jeremiah Smith, in 11 Harvard Law Review, 349-473, 434-448 ; and the legal difficulties of charging landowners with greater duties to children than to adults are well set forth in his

article on “Liability of Landowners to Children Entering Without Permission.” As we understand the decisions, statutes requiring railroads to fence are not treated as declaratory of an existing and recognized legal duty, but as imposing upon the railroads new and further duties deemed essential or important for the safety of the public, the security of passengers and employes, or the protection of the property of adjoining owners. Legislation imposing such duties is justified as an exercise of the police powers of the state. Minneapolis & St. Louis Railway Company v. Emmons, 149 U. S. 364, 367, 13 Sup.

Ct. 870, 37 L. Ed. 769. The creation of special duties of landowners, additional to those recognized at common law, is a matter for the Legislature in the exercise of its police powers, and not a matter for a jury.

The proposition that because a landowner may have grounds for thinking that children may come upon his premises, and run into danger, he is thereby charged with the duty to fence his lands for their exclusion, cannot be regarded either as an established principle of general law to be applied by the federal courts, or as a rule which may or may not be applied at the discretion of a jury of a federal court sitting in a district where the state law is otherwise.

To impose upon landowners duties in derogation of ordinary right, there must be the justification of the interests of the public generally, and the discretion is vested in the Legislature to determine not only what the interests of the public require, but what measures are necessary for the protection of such interests. Lawton v. Steele, 152 U. S. 133, 136, 14 Sup. Ct. 499, 38 L. Ed. 385. In Missouri Pacific Railway Co. v. Humes, 115 U. S. 512, 522, 6 Sup. Ct. 110, 113, 29 L.

Ed. 463, it was said of a statute of Missouri requiring railroad corporations to erect fences: “Authority for enacting it is found in the general police power of the state to provide against accidents to life and property in any business or employment, whether under the charge of private persons or of corporations.” In Minneapolis Railway Company v. Beckwith, 129 U. S. 26, 34, 9 Sup. Ct. 207, 32 L. Ed. 585, it was observed by Mr.

Justice Field: “It is true that, by the common law, the owner of laud was not compelled to inclose it, so as to prevent the cattle of others from coming upon it, and it may be that, in the absence of legislation on the subject, a railway corporation is not required to fence its railway, the common law as to Inclosing one’s land having been established long before railways were known.” Apparently the Massachusetts court has taken the view that the duty does not exist under the principles of common law, and exists only so far as it is imposed by statute, and to those persons who are within the purview of the statute.

The decision of the Supreme Court of Massachusetts in Morrissey v. Eastern Railroad Company, 126 Mass. 377, 30 Am. Rep. 686, is closely in point, and adverse to the contention that, independently of statute requirement, the railroad company was' negligent in respect to a duty owed plaintiff’s intestate. Due weight must be given to this decision of the state court, as well as to the decisions construing the statute of Massachusetts. In Berlin Mills Co. v. Croteau, 88 Fed. 860, 32 C. C.

A. 126, this court referred to the “broad and indefinite general proposition that, so far as there exist reasonable grounds for apprehending danger, a corresponding duty arises to take precautions,” saying: “The cases furnish much more specific rules to aid owners to understand their obligations.

These specific rules are not inconsistent with, but are narrower than, that broad proposition.” The only principle of general law, so called, upon which the plaintiff relies, is the indefinite rule above referred to; but the decisions of Massachusetts courts upon the question before us furnish much more specific rules for the guidance of owners of land situated in Massachusetts.

Cases may be conceived, of course, where it would be gross and wanton negligence for a railroad company to run its trains in the ordinary way, when its servants had knowledge that persons would probably be upon its tracks and would be injured; but the case before us is not of that character. The negligence charged is the failure to erect a fence to provide against a possible accident through the thoughtless act of a child, in coming suddenly upon its tracks. The opinion in McCabe v. American Woolen Co. shows that the decisions of the Supreme Court in Railroad Company v. Stout, 17 Wall. 657, 21 L.

Ed. 745, and Union Pacific Railway Company v. McDonald, 152 U. S. 262, 14 Sup. Ct. 619, 38 L. Ed. 434, relate to cases which on many grounds are distinguishable from the case before us. Furthermore, the element of “inducement” or “attraction” is entirely absent in this case.

As it is practically conceded that, under the Massachusetts decisions, the plaintiff could not recover, and as it has not been made to appear that the Massachusetts cases are inconsistent with any rule of the common law or of general law, or with the general trend of authority, we find no reason for applying in this case rules of law different from those applied by the state court. For the sake of harmony, and to avoid confusion, the federal courts will lean towards an agreement with the state courts if the question seems to them balanced with doubt. In Randolph v. Quidnick Company, 135 U. S. 457, 463, 10 Sup.

Ct. 655, 657, 34 L. Ed. 200, it was said: “As to the construction of a state statute, we generally follow the rulings of the highest court of the state, Bacon v. Northwestern Life Insurance Co., 131 U. S. 258, 9 Sup. Ct. 787, 33 L. Ed. 128, and cases cited in opinion; and, as' to other matters, we lean towards an agreement of views with the state courts, Burgess v. Seligman, 107 U. S. 20, 34, 2 Sup. Ct. 10, 27 L. Ed. 359.” See, also, Clark v. Bever, 139 U. S. 96, 117, 11 Sup. Ct. 468, 35 L. Ed. 88.

We are of the opinion that the Circuit Court erred in refusing to instruct the jury as requested by the defendant: “Upon all the evidence in this case, the plaintiff is not entitled to recover •upon the first count in the declaration.” The judgment of the Circuit Court is reversed, and the case is remanded to that court for further proceedings-not inconsistent with this opinion, and the plaintiff in error recovers its costs in this court.