CAHILL v. CHICAGO, M. & ST. P. RY. CO., 74 F. 285

WOODS, Circuit Judge. This is an action on the case for personal injury suffered by Maria Cahill, the plaintiff in error, who, when attempting, afoot, to cross a switching track of the defendant in error at the Union Stock Yards, in Chicago, was struck and run over by a backing engine, whereby she lost both feet, and suffered other serious bodily injuries.

The action was commenced in the Cook county circuit court, and transferred thence to the court below, where additional counts to the declaration were filed, in the first of which it is charged that on the 25th day of November, 1892, the defendant was operating and moving a locomotive, with two freight cars attached thereto, upon a certain railroad track, across which lay and ran a well-known and generally and publicly used path and passageway for pedestrians, in which path the plaintiff was walking, as she and the public were accustomed to do, and while she was so walking, and was exercising due and proper care, the defendant’s servants “did so negligently, willfully, recklessly, wantonly, and care< lessly move and run the said engine and cars towards and against plaintiff as thereby to throw plaintiff to the ground.” This is a good charge of negligent injury.

The allegation that the path was well known and publicly used, in the absence of a special demurrer, or a motion'to make more specific, is equivalent to an averment of notice to the railroad company of the existence of the path. While the place of the accident, it is conceded, was not a highway, or other established public crossing, yet for many years great numbers, counting thousands daily, of men, women, boys, and girls, were accustomed to cross there, morning and evening, when going to and returning from their work.

Of this custom the defendant in error, and other railroad companies possessing and using adjacent tracks, were not ignorant; and their consent to it, if not admitted, was fairly inferable. No earnest efforts were made, nor‘efficient means shown to have been employed, to cause people to desist from passing that way, though a few rods of fence along the east side of Packers avenue, it is apparent, would have been sufficient for the purpose.

If such a fence could not have been erected without the consent of the Ninon Stock-Yards Company, it is a fair inference, from tbe community of interests between that company and its lessees, tbe railroad companies, that tbe consent could have been bad for the asking. Besides, one resolute man at each end of the path, if not able to turn the passing people another way, could have given such distinct and constant warning- as to make trespassers of all who persisted in crossing.

For ¡hat purpose, perhaps, a painted sign, “Keep Off the Tracks,” at either end of the path, would have been sufficient, but no such signs were there.

The court below directed a verdict for the defendant; puliing its ruling, as the entire charge shows, on the sob1 ground that the place where the injury was suffered, notwithstanding the custom of large numbers to pass that way daily, “was not to be considered a crossing” in respect to which the company could be charged with neglige nce, and that the only ground on which the company could be liable for the injury was wanton and willful conduct of its servants, of which there was no evidence. This ruling was erroneous.

While it is well settled that, under ordinary circumstances, a railroad company owes no duty to a trespasser upon its tracks, it is also true that a trespasser may not be wantonly or willfully run down, and when he is perceived to be in a position of danger, from which he is not likely to escape by his own exertions, there arises on the part of the company a duty to use all reasonable diligence not to harm him. Railway Co. v. Tartt, 12 C. C. A. 618, 64 Fed. 823, and 24 U. S. App. 489.

That much is due to a decent regard for human life and limb, and, on the same principle, it must be that in places on the tracks where people are accustomed to come and go frequently in considerable numbers, and where by reason of such custom their presence upon the track is probable, and ought to be anticipated, those in charge of passing trains must use reasonable precautions to avoid injury, even to those who, in a strict sense, might be called trespassers.

Bui., when a railroad company consents to the customary or frequent passing of people over its tracks, they cannot be deemed trespassers, and the duty is as clear as the necessity that locomotives and cars be moved with proper regard for their safety. The adjudged cases on the subject are numerous. A leading one is Barry v. Railroad Co., 92 N.

Y. 289, 292, where there had been long acquiescence of the company in Hie crossing of its track by pedestrians, which amounted' to a license and permission to all persons to cross at a point where there was only a private right to cross; and it was held that the circumstances imposed a duty upon the company, in respect; t.o persons using the crossing, “to exercise reasonable care in the movement of its trains.” This case is reaffirmed in Byrne v. Railroad Co., 104 N. Y. 362, 10 N.

E. 539, where it was held “that the defendant was not absolutely bound to ring a bell or blow a whistle, but that it was bound to give such notice or warning of the approaching train as was reasonable and proper under tin* circumstances.” In Taylor v. Canal Co., 113 Pa.

St. 162, 8 Atl. 43, after reference to the Barry Case the supreme court of Pennsylvania says: “Tlie principle, clearly settled by tbe foregoing and many other cases that might be cited, is that wbon a railroad company has for years, without oh-jection, permitted the public to cross its tracks at a certain point, not in itself a public crossing, it owes the duty of reasonable care toward those using the crossing; and whether, in a given case, such reasonable care has been exercised,-or not, is ordinarily a question for the jury, under all the evidence.” In Roth v.

Union Depot Co. (Wash.) 43 Pac. 641, where there is a discriminating review of cases, it is held that a company’s acquiescence in the daily use of its track for travel afoot by 50 to 100 people imposes on the company a duty of ordinary diligence to avoid injury to persons using the track. In Railway Co. v. Dick (Ky.) 15 S. W. 665, involving the same question, it was said that “undoubtedly the appellee ought not to be regarded as a trespasser upon the yard of the company,” because he “was crossing the tracks by the permission of the company.

It had, by its acquiescence in the work hands crossing them for a long time, licensed them to do so. It was permitting such use, and it had, therefore, by its own conduct, imposed upon itself a precautionary duty, as to the appellee, when he might be crossing its tracks in going from and returning to his work.” To the same effect are Railway Co. v. Wymore (Neb.) 58 N. W. 1120; Ward v. Southern Pac. Co. (Or.) 36 Pac. 166. See, also, Townley v. Railway Co., 53 Wis. 626, 11 N. W. 55; Whalen v. Railway Co., 75 Wis. 654, 44 N. W. 849; Conley v. Railway Co. (Ky.) 12 S. W. 764; Railway Co. v. Crosnoe, 72 Tex. 79, 10 S.

W. 342; Railway Co. v. Meigs, 74 Ga. 857; Southerland v. Railroad Co., 106 N. C. 101, 11 S. E. 189; Frick v. Railway Co., 5 Mo. App. 435; Palmer v. Railway Co., 112 Ind. 252, 14 N. E. 70. It is, of course, a question of fact, in each case, whether there has been, with the consent or acquiescence of the railroad company in possession, such a public and customary use of the supposed crossing as to justify the presence upon the track of the person injured. Taylor v. Canal Co., supra; Chenery v. Railroad Co., 160 Mass. 211, 35 N. E. 554.

We are asked, however, to affirm the judgment on the ground of contributory negligence on the part of the plaintiff in error. It is within our power to examine the evidence, and to affirm the judgment on that ground, if in accordance with the rule laid down in Hayes v.

Railroad Co. (just decided by this court) 74 Fed. 279, we should find the proof to be without conflict, and convincing; but we do not deem it obligatory upon us, in this instance, to enter upon that inquiry., The record shows affirmatively that the circuit court based its decision upon the proposition which we have considered, and if, after declaring that untenable, we should affirm the judgment on another ground, our action would be primary, and not, as is contemplated by a writ of error, merely a review.

If the record showed simply a peremptory instruction for a verdict one way or the other, it would be necessary to consider whether or not, upon any view of the entire evidence, the instruction was right; but when the ground of the decision is disclosed, as in such cases it ought perhaps always to be, and especially when there is, or can reasonably be, dispute about the facts, or about the inferences of fact deducible from the evidence,’ we think it the better practice that the review on writ of error should not extend beyond the question considered below.

Ordinarily a correct decision will be affirmed, though predicated upon an unsound reason; but bere there were two distinct issues, each of which, if found for the defendant, was determinative of the case: First. Was the place where the injury occurred a passageway of the character alleged in the declaration? Of that issue the plaintiff in error had the burden of proof, and the court, deeming the evidence insufficient, withdrew the question from the jury. Second. Was the plaintiff in error guilty of contributory negligence?

Of that issue the defendant in error had the burden of proof, and the court made no ruling and expressed no opinion about it. When an item of evidence is admitted or rejected, the question is a single one; and if the ruling be right it will be upheld, regardless of any mistaken reason upon which it was based. And so of any single ruling whatever which may occur in the progress of a cause, — it must be disposed of on appeal upon its merits.

But it is manifestly a different proposition when the court has erroneously directed judgment against the plaintiff in the action because of the supposed lack of evidence to support the declaration, and we are asked to affirm the judgment: on the ground that an affirmative defense has been established, in respect to which the court expressed no opinion. There can be no question of the proposition found in Lancaster v. Collins, 115 U. S. 222, 227, 6 Sup.

Ct. 33, that “no judgment should be reversed in a court of error wlien it is dear that the error could not have prejudiced, and did not prejudice, the rights of the parties against whom the ruling was made.” Such were all the cases cited in the dissenting opinion. In none of them was there, or could there have been, a dispute about the facts on which an affirmance was ordered. But in this case not even the physical facts are in all material respects certain.

The ultimate question, which must be determined by inference, — whether or not the plaintiff in error, when hurt, was exercising due and ordinary cart;, — is in dispute; and what the conclusion ought to be.floes not seem so clear as to require, or perhaps to justify, an affirmance of the judgment on the ground of contributory fault. It is therefore deemed best now to say nothing more definite on Hie subject. While we have treated the judgment in this case as if it had been rendered upon a verdict of the jury delivered in accordance with the court’s peremptory direction, the fact is not literally so.

The record shows that the jurors, at the conclusion of the charge, refused to render a verdict for the defendant, severally stating that they could not conscientiously do so, whereupon the court said: “Very well.

You may retire to your room, and return with such a verdict as you may find.” The jury accordingly retired, but were recalled into court at a later hour, and directed again to return a verdict for the defendant; but, one juror still holding out, counsel for the plaintiff was permitted to stipulate of record that a judgment of «dismissal might be entered, to have the same force and effect, and none other, iban a verdict for the defendant under the direction of the court, but that plaintiff should be considered as excepting to such direction, and also to such order of dismissal, and thereupon the court ordered such dismissal, and the plaintiff thereupon excepted to sucb ruling.

The stipulation should not have been accepted. The authority and duty of a judge to direct a verdict for one party or the other, when, in his opinion, the state of the- evidence requires it, is beyond dispute; and it is not for jurors to disobey, nor for attorneys to object, except in the orderly way necessary to save the right to prosecute a writ of error. The conduct of the juror in this instance was in the highest degree reprehensible, and might well have subjected him, and any who encouraged him to persist in his course, to punishment for contempt.

His conduct was in violation of law, subversive of authority, and obstructive of the orderly administration of justice. In fact, by his course he put in jeopardy the interests which he assumed to protect, because it is only by treating the case as if the verdict directed had been returned that we have been able to review the judgment and to order a new. trial.

We deem it proper to observe here that it is not essential that there be a written verdict signed by jurors or by a foreman, and we have no doubt that, in cases where the court thinks it right to do so, it may announce its conclusion in the presence of the jury and of the parties or their representatives, and direct the entry of a verdict without asking the formal assent of the jury.

Until a case has been submitted to the jury for its decision upon disputed facts, the authority of the court, for all the purposes of the trial, is, at every step, necessarily absolute; and its ruling upon every proposition, including the question whether, upon the evidence, the case is one for the jury, must be conclusive until, upon writ of error, it shall be set aside. That remedy is provided by law, and presumably will be effective and adequate, if there be just ground for invoking it. Certainly the obstinacy of a conceited juror is not likely to prove a wholesome substitute.

The judgment is reversed and the case remanded, with instructions to grant a new trial.