
    (Cincinnati Superior Court, Special Term,
    February, 1893.)
    THE B. & O. S. W. R. R. CO. et al. v. R. R. CO.
    
      Trespasser on Railroad — Liability of R. R. Co. for injury.
    
    On motion to take from the jury.
    Judson Harmon, for motion.
    C. W. Baker, contra.
   HUNT, J.

This was an action to recover damages for alleged personal injuries, resulting from ’the negligence of the defendant.

Tbe evidence disclosed that the plaintiff had jumped on the step in front of a freight engine for the purpose of riding into the city. The step was used only for switchmen in the line of their duty. The company had no knowledge of the fact that the plaintiff was there, and no reason to believe that he was there in the exposed position. He paid no fare, and was there without any invitation, express or implied.

The engine, which was moving some freight cars, collided with an engine of the C. , C., 0. & St. L. R. R., and the plaintiff was thrown from the car and injuries resulted, causing an amputation of the foot.

The plaintiff introduced his evidence, and thereupon the defendants moved to arrest the testimony from the jury and for a non-suit.

Judge Hunt held, as a proposition of law, that every person who enters upon the property of a railroad company, either its track, or its cars, or engines, without due license, or authority, is, as long as he remains there, to be regarded as a trespasser. License to enter, however, may be express or implied. There is no legal duty from a railroad to a trespasser on its track, nor is it a part of its duty in exercising ordinary care in the operation of its road, to provide against the possibility that trespassers may be on its track, and the extent of its duty is to refrain from wilful or deliberate injury. This doctrine is supported by the great weight of authority.

A railroad company is liable even as against a trespasser for a wanton or wilful or deliberate injury. It may be accepted as a rule that the duty of a common carrier to provide against injuries to strangers, while not requiring the same care and diligence as in the case of passengers, is governed by the general principle of lgw, that every one is obliged, upon considerations of humanity and justice, to conform his conduct to the rights of others, and in the prosecution of his lawful business to use every reasonable precaution to avoid their injury. In no case has the railroad company a right to inflict a wanton injury upon a naked trespasser upon its property.

This is not in conflict with the C., H. & D. R. R. Co. v. Kessen, (31 N. E. Rep. 282) where it was held that the plaintiff may recover, notwithstanding his own negligence exposed him to the risk of injury, if the defendant, after he became aware or ought to have become aware of the plaintiff’s danger, failed to use ordinary care to avoid injuring him, and he was thereby injured.

In the case at bar there was no knowledge by the defendant of the exposed condition of the plaintiff, who was a trespasser, and there is no evidence tending to show that the injuries were wilfully or wantonly or deliberatelj inflicted.-

Motion granted.  