TUTT v. ILLINOIS CENT. R. CO., 104 F. 741

DAY, Circuit .Judge, after stating- the foregoing facts, delivered ilte opinion of tlie court. If may be conceded that the railroad company had, as against: trespassers, an exclusive right to the occupation and use of its tracks within its' yards, as well as of its tracks at other points, and that to persons trespassing it owes no duty, except to avoid injuring them unnecessarily after they are discovered upon the premises.

This right is essential to the operations of the company in carrying- on its business, and no other or higher duty arises unless the facts show that the person injured is upon the tracks with the express or implied consent of the railroad company, if the person is a. licensee, the company' is obliged to use reasonable care to avoid injury to one sustaining that relation; the reason of the doctrine being that where the company has the exclusive right to the use of its tracks, and has neither impliedly nor expressly licensed persons to be there', it has no reason to expend: them, and consequently' is under no obligation to be on the lookout, or to avoid injury' to such persons.

But where they may be expended te> be, and where an implied license has arisen from the conduct of the company,- it: is bound to use care1 commensurate with the e-.ire-umstances to avoid injury7 to such persons. Whether the circumstances are such in a particular case as to give rise to this implied license is a question to he decided upon the facts as they may arise in each instance. Where it is claimed that no such license has been extended, and but one inference can be reasonably drawn from the circumstances, and that showing the person to be a trespasser, the question becomes one of law.

Where, however, there is testimony showing that a license, either expressed or implied, arises from the circumstances, the question becomes one of fact, to be submitted under proper instructions to the jury; and the question in this case is, was there such a situation shown as made it clear, as a matter of law, that the boy, at the time of his injury, was a trespasser, or had the circumstances given rise to such an implied license as made the question one to be submitted to the jury? If the boy was a trespasser, there is no testimony in the case to show that he was willfully or wantonly injured.

If a trespasser, there arises no higher duty on the part of the railroad company than would result' in a like situation towards an adult. We have recently had occasion to examine the doctrine of implied license, and the-duty of the employer to the licensee, in the case of Ellsworth v. Metheney (decided by this court Oct. 2, 1900) 104 Fed. 119. In that case we applied the doctrine of this court as laid down by it in the case of Felton v. Aubrey, 20 C. C. A. 436, 74 Fed. 350, to the case then developed.

In the Aubrey Case the doctrine of implied license and the duty owing the licensee were very fully examined, and the cases reviewed, in the opinion of the court, given by Judge Lurton. In that opinion it was pointed out that the duty to one crossing the premises of another might be different in a case where the condition of the premises was the only matter complained of, and one where the active conduct of the proprietor upon the premises resulted in injury.

In the one case, there being no obligation to put the property in a particular condition because of visitors, and in the other, where persons had been permitted for a considerable time to visit the premises, a duty may arise on the part of the proprietor to refrain from such active conduct as would interfere with the safety of persons who may be expected to be found thereon. The very full examination of the authorities in this connection in Felton v.

Aubrey, supra, renders it unnecessary to do more than state the doctrine of that case, and apply it to the developments of the proof herein “If the evidence shews that the public had for a long time customarily and constantly, openly and notoriously, crossed a railroad track at a place not a public highway, with the knowledge and acquiescence of the company, a license or permission to all persons to cross the tracks at that point may be presumed.

Persons availing themselves of such implied license would not be trespassers, and the railroad company would come under a duty in respect to such licensees to exercise reasonable care in the movement of its trains at points where it was bound to anticipate their presence.” It is argued that this doctrine applies only where a definite and fixed crossing has been established, to be likened unto a public crossing. We do not think the doctrine should be thus limited.

In the present case, if, in the space between the streets and the land adjacent to the canal, people were continuously crossing without effectual means to prevent them, or proper warnings to desist therefrom, a license may result, and a situation be created where a duty may arise to those who may be expected to be found on the premises. .We do not inquire whether the testimony was such as to create this implied license, but whether it was of sufficient weight to carry that question to the jury. In determining this proposition, the facts must be taken in their most favorable construction to be plaintiff.

Here was a place which, the testimony tended to show, had long been used by people and children crossing and recrossing to and from the canal. No- attempt has been made to fence against trespassers. No watchmen were on duty. No notices were posted warning trespassers of danger. It is true that there was testimony on the part of the defendant that people, especially children, were driven away, and that the company had instructed employes to keep all such persons off its premises, and upon this proof it is claimed the jury should find that there was no implied license to the plaintiff to cross the tracks.

We think, however, that there was enough in the use of the premises, in the lack of warning, and other circumstances to which we have referred, to fairly carry that question to the jury, and that it was not, as held in the court below, to be resolved in favor of the defendant, as a question of law’, but should have been submitted to the jury under proper instructions. If the jury should find, under the circumstances, that the boy was not a trespasser, but was upon the grounds of the company under an implied license, then we think the question of negligence should have been left to the jury.

The plaintiff's testimony tended to show that the approaching cars had no brakeman upon them; that no warnings were given; that no means were taken to avoid collision with persons who might be expected to be found upon the tracks of the company; that the boy had passed through the opening from the canal, and was returning, when, without warning, the cars were pushed against him. Under such circumstances, it might properly be left to the jury to determine whether such management was negligence.

As to the contributory negligence of the boy, there is nothing in the case to require a different conclusion than we have herein reached. It is familiar law that a child, under such circumstances, is required only to use that degree of care which may be expected of one of its age and experience. Upon the whole case, we are of opinion that there was sufficient conflict in the testimony to have required the submission of the issues to the jury, and that the learned judge erred in treating the matter as one of law, to be solved in favor of the company.

The judgment will be reversed, and the cause remanded for further proceedings consistent: with this opinion.