
    L. W. Thomas, Appellant, v. The Chicago, Milwaukee & St. Paul Railway.
    4 Railroads: trespassers. A railroad company owes no duty to a trespasser upon the track until its employes actually see him in a place of danger.
    2 License. A license to use a railroad track may be inferred from facts and circumstances short of an actual invitation or consent on the part of the company.
    1 8 Rule applied. For many years the bridge and track of the railroad company at and near the place of an accident had been in almost constant use as a footpath, so that a path had become well worn. Persons living in the neighborhood of the bridge and track, and also the villagers, used the path in going to and from the depot, village and school. The bridge passed over a highway, and access to the bridge was had by means of a ladder. It did not appear who erected the ladder. There was no evidence that the company had ever given license to use the bridge or track as a footpath, or that it had ever attempted to prevent such use. The company’s employes knew of the ladder. It was in plain view of all train operatives, and defendant’s superintendent had been in a position where he might have seen it. Held, that a finding that the bridge and track were used as a footpath, with the consent of the company, was warranted. Burg v. Railway, 90 Iowa, 106, distinguished.
    
    5 Duty ok employes. Employes operating a train are bound to keep a lookout for persons on the track with the license or invitation of the company, express or implied, and to exercise ordinary care to discover the presence of and avoid injuring such persons.
    £ Same. Employes operating a train are charged with the duty of exercising care, diligence and watchfulness to discover whether persons are on the track at a point -where the • company has impliedly assented to the use of the track as a footpath, and the rule applicable to trespassers does not apply to one upon the track by virtue of such license.
    
      Appeal from Marshall District Court. — Hon. B. P. Birdsall, Judge.
    Saturday, October 30, 1897.
    Action to recover damages for injuries sustained by Earl B. Thomas, a minor son of the plaintiff, through the alleged negligence of the defendant company. Jury trial. Verdict directed for 'the defendant by the court, and. judgment accordingly. Plaintiff appeals.—
    
      Reversed.
    
    
      J. L. Carney for appellant.
    
      Charles B. Keeler and T. Binford for appellee.
   Kinne,

C. J.

I. This is the second appeal in this case. The opinion on the former appeal wall be found in 93 Iowa, 248. After the reversal upon the former appeal, certain amendments were made to the petition, the substance of which are incorporated in the statement of the case. Just before noon, on May 15, 1890, Earl B. Thomas, a minor son of the plaintiff, aged three years and nine months, was, with another child younger than himself, upon an open uncovered bridge, which was located upon the defendant’s line of railway, about one thousand nine hundred feet west of the station of Rhodes, in Marshall counity, Iowa, and, while there, was run over by a train going west, and Ms right foot was so crushed as to require its amputation. The petition charges that, without fault on the part of his parents, the child went upon the track and bridge, and was in plain sight from the station, and at all points upon the road between the station and the place of the accident; that the defendant’s employes, knowing that the children were on the track, started a train from the water tank at the station, a distance of about ninety rods from the bridge, westward (the engine being in front, but with the pilot attached to the ears), and negligently and carelessly ran the train over the plaintiff’s child; that all of the persons upon the engine knew that the child was upon the track and' bridge, but did not look along the track over which they were going, or exercise any care or caution whatever in the operation of said train or to discover whether or not the track was clear; that it was a wild train, not running on schedule time, and was running with the engine backward; that the train was not manned with a sufficient number of brakemen, and the engine was without steam or air brakes. It is also charged that the engineer and other employes on the train saw the said child in time to have stopped the train and prevented the accident; that they negligently allowed the engine and cars to approach and reach said bridge without signal of bell or whistle, and without any effort to stop said train, and ran over the foot and leg of said child; that the roadway and track of defendant’s line of railroad extending from the overhead bridge, just west of the bridge where the injury occurred, to the station of Rhodes, was daily and almost hourly frequented- by men, women and children, traveling upon foot, east and west upon -said line of railway; that, for the purpose of convenience in access to said railway track from the overhead bridge in connection with the highway, there had been constructed a ladder by the defendant’s employes, or with their knowledge and consent, so that persons could have ready access from the highway to the railway track, and -also from the railway track to the highway; that with the knowledge and consent of the defendant, and for more than ten years prior to the accident, people residing in the vicinity of the bridge and in the town of Rhodes had constantly used the track of the defendant’s railway for the purpose oí traveling to and from the depot, school, and village oí Rhodes, and had used said ladder for the purpose of reaching the track of the defendant; that the public generally had leave and license to use said railway trhck as a footway, and the child Earl was not a trespasser thereon; that defendant’s employes were negligent in not exercising- watchfulness and care in reference to the train while it was passing over such part of the track where pedestrians had license to walk, and such negligence caused said accident. To the answer the defendant interposed a general denial, except that it admitted its corporate capacity, and that'the accident was caused by one of its trains. When plaintiff’s evidence was in, the defendant moved the court for a verdict in its favor, because there was no evidence warranting a verdict for plaintiff; that there was no evidence sufficient to sustain a finding of negligence on part of the defendant company or its employes which was the cause of the accident; that the evidence did not warrant a finding that the defendant owed to the child •any legal duty of watchfulness and care before his position was known, and it is not shown that there was any want of care after his position was known; that no license or right upon the part of the child to be upon the 'track and bridge had been shown, but he was. a trespasser; that the evidence failed to show any invitation or consent by the defendant to use its track and bridge asa footway; that the evidence failed to show that the engineer or other trainmen actually saw the child upon the bridge before the accident, or, if they did see him, that they had failed to use all the means and appliances' at their command to stop the train and avert the accident. This motion was sustained.

II. An important question in this case is as to whether the child E.arl was upon the track and bridge of the defendant company by leave or license of the defendant. The former trial was had upon the theory that the child had no right upon the track; that he was a trespasser; and that there was nothing in the situation or surroundings requiring the trainmen to be on the lookout for persons on the track. If the child was a licensee, instead of a trespasser, another rule of law may obtain. The evidence which it is claimed shows a license to use the track and bridge as a footway by pedestrians may be briefly stated as follows: For many years prior to the accident, the bridge and track of the defendant company, from the place of the accident to the station of Rhodes, had been in almost constant use by people living in the vicinity of this bridge as a footway in going to and from the depot, school and village. Children of from four or five years old and upward used it as a means of going to and from school. The bridge passed over a private highway, and access to the bridge and track were had by the use of a ladder reaching from this highway to the head block of the bridge above. It does not appear as to who erected this ladder. The bridge was fourteen feet above the highway. There were paths leading -from the track to this ladder. These paths were well worn. This track and ladder were also used by persons living in the village who had occasion to visit those living in the vicinity of this bridge. The distance to the village was much less by way of the track than by the highways. There was no evidence to show that the defendant company ever gave leaver or license to use this bridge and the track as a footpath, nor does it appear that the defendant company ever made any attempt to prevent such use. The ladder could be seen from the track. The road master of the defendant company and other of its employes had seen this ladder. The superintendent of the company was present at one time while the bridge was being raised, and the ladder was then attached to the bridge. There is nothing to show that the use of this ladder was ever interfered with by the defendant company. From all of 'the evidence, it is clear that the footpath and ladder were seen by some of the defendant’s employes, and that they were so situated as to be seen by any employe of the defendant company engaged in the operation of its trains.

We held in Murphy v. Railway Co., 38 Iowa, 542, that an instruction in the following- language was proper: “If you find from the evidence that the deceased had for a considerable time prior to the accident been accustomed to walk over and upon the track of the railroad company, at and near the place where the accident occurred, by the acquiescence of the company, then the deceased was not a trespasser upon the track, and such permission may be implied if deceased was long in the habit of so walking over the track, with the knowledge of the company or its employes in charge of that part of the road, without objection on their part; and it is for you to determine from all the facts in evidence before you whether or not the deceased had such impHéd permission.” It was said in that case that facts which would be sufficient to constitute ordinary diligence as against a trespasser might not establish such diligence as against a person there by permission. In Masser v. Railway Co., 68 Iowa, 604, it is said: “The evidence tended- to show that the track at that point was traveled to some extent by footmen, and that there had been such an amount of travel as to make a path.” It was held the facts did not show a*license. The court, however, said: “If the travel had been at a p oint where the defendant’s employes were stationed, and it were shown that the footmen occupied the track without their dissent, it may be that the company’s assent should be implied.” In Burg v. Railway Co., 90 Iowa, 106, it was held that an allegation in a petition that “for more 'than ten years defendant’s roadbed- and right of way, from a point west -of where the accident happened to the city of Des Moines, has been nsed by the public as a thoroughfare to and from said city of Des Moines, which fact was well known, to the defendant and its employes,” did not state facts from which the law would infer a license. In that case it was said: “We are not saying that there might not 'be such a use of the track as that the assent of the company might be understood and implied therefrom, but no such state of facts is pleaded.” In Richards v. Railway Co., 81 Iowa, 480, it was held that the facts did not -show a license or invitation to people to walk along the defendant’s tracks-, and that the fact that it did- not forbid their doing so could not be given the force of an invitation. The court said: “It may be there was evidence of such habitual use of the tracks by the public, which use was known to the employes of- defendant, and not disproved, that the jury would have been authorized to find that plaintiff had an implied license to- use the right of way as he did. But, if that be true,' defendant was under no obligation to protect plaintiff from harm by taking steps to prevent it, unless it had so acted as to mislead him. It was the duty of defendant not to injure him want-only or wilfully, but if it had done no act to mislead, and 'had- no reason to anticipate the danger to which plaintiff exposed 'himself, it owed him no active duty.” In Clampit v. Railway Co., 84 Iowa, 71, it was held that, one using a railway track for crossing at a place daily used for a considerable time by a number of persons, some of whom had constructed a stairway by the track for the use of pedestrians, and when a crossing over a ditch had been made 'by some one unknown, and the defendant had done nothing to prevent persons from crossing said track, and. the use of such place as a crossing was known to the employes of the defendant, it would be presumed to assent to such use, and that it was a license, and the plaintiff, in using it, was not a trespasser. On the former trial of this case we said: “It may also be remarked in this connection that a license to use the track of a railroad company may be inferred from frequent use, in connection with- other -circumstances from which- an implied invitation may be inferred.”

From the foregoing cases it appears that this court has often recognized the doctrine that a license to use a railway track may be inferred from facts and circumstances short of an actual invitation or consent on the part of the railway company. The question, then, before us, is: Are the facts and circumstances disclosed in this record such as to warrant a jury in finding an implied invitation or license to use the track by footmen? It may be admitted that the facts in this case touching the circumstances surrounding the use of the track are in some respects not the same as in Clampit’s Case; yet they are in all essential respects save one much alike. In the case at bar the use of the track was not merely for crossing purposes. In that ease the court said: “The stairway and the ties -across the ditch, as well as the path made bv foo'tmen, prominently advertised the place as a crossing used by pedestrians. No engineer or fireman passing along the tracks at that place, with his eyes open, in the exercise of reasonable watchfulness and care, could have -failed to -see these indications of -a footpath, and to understand 'therefrom that it was used by pedestrians, if he possessed ordinary intelligence.” This language applies as well to the facts in the case at bar. Here was an almost constant use of this track. Here were well-defined footpaths, and a ladder in use for years, for the purpose of reaching the 'track. The track repairers knew the ladder was there-. The road master had actual knowledge of it. The superintendent had) once, at least, been where, if he used his eyes, he must have seen it. It was in plain view of all of the train operatives. It does not appear that the ladder was ever used for any purpose except as a means of getting onto the track; and, with the fact undisputed of the use of the ladder, paths, and track for years without objection from the defendant or any of its employes, all these and other facts would warrant a finding by a jury that the use of the track was by the consent of the defendant, and therefore the child Earl was not a trespasser.

III. If the rule of law as to care to be exercised by the employes of the company operating its train is the same towards one who is a mere licensee by virtue of an implied invitation from the defendant as it is in case of a trespasser upon the track, it was not necessary to submit this case to the jury for the purpose of determining which of these relations this child occupied towards the defendant company. As is said in the opinion on the former appeal in this case, if the child was a trespasser, then the company owed him no duty until its'employes actually saw him on the track in a place of danger; that they were not bound to keep a lookout for trespassers, and were .not negligent- in failing to discover trespassers upon its track. Masser v. Railway Co., supra; Burg v. Railway Co., supra; Morris v. Railway Co., 45 Iowa, 29; Richards v. Railway Co., supra; Thomas v. Railway Co., 93 Iowa, 248. Appellant contends that this should not be the rule even as to trespassers. Such has been the uniform holding in this state, and, unless there are cogent reasons for departing from it, it should not be changed. We discover no sufficient reason for changing this rule, which has always been consistently adhered to by this court. The important question now is, does this rule apply with like force and effect to one who may be found to be a licensee by invitation of the company, implied from all the surrounding circumstances? The •general current of authority undoubtedly is that the same rule ordinarily applies in both cases. 3 Elliott, Railroads, sections 1154, 1249-1251, and cases cited; Beach, Contributory Negligence, section 212, and cases •cited. Indeed, it is held that one using a railway track as a place of crossing or a footpaith, with the silent acquiescence of the company, or with the knowledge or passive permission of the company, is, at most, a bare licensee, who takes his license with all of its concomitant risks and perils; and, as a general rule, the company owes him no greater duty than that which is due to a mere trespasser. 3 Elliott, Railroads, section 1154, and oases cited. Such is undoubtedly the general trend of the authorities in this country. In our own state, in Richard’s Case, this doctrine seems to be recognized and applied as to one walking along the track; while in Clampit’s Case (the last expression of this court upon this subject) it is expressly held that one crossing the track of a railroad company under circumstances as to uses of the track much like those of the case at bar “was entitled to all the rights and protection of one rightfully upon it with the license of the defendant. He mav recover for injuries resulting from the defendant’s want of care, if not contributing thereto by his own negligence.” Owing to the age of the child Earl, there can be no question of contributory negligence in this case. If the rule laid down in Clampit’s Case is to be adhered to as to one crossing the track, we see no escape from the conclusion that this case should have been submitted to the jury under proper instructions. of the court, for them to determine whether the child was a 'trespasser or licensee, and, if a licensee, whether the employes of the defendant exercised that care to. discover his presence upon the track, where, from the license given, they had a right to expect persons might be. We believe the rule announced in Clamp'd’a Case a just one, as applied to the fact's in that case. It amounts to saying that, when the company had impliedlv assented to the use of its track by persons as a footpath, its employes operating trains are charged with the duty of exercising care, diligence, and watchfulness to discover if persons are on the track at these places where they have recognized their right to be. We are not holding that at every place, and continuously along the line of a railway, the employes operating trains must be on the watch for trespassers. What we do hold is that as to persons rightfully on the track by the license and consent of the company, whether such consent be expressed in words or arise by implication, a. duty rests up oh the company and its employes to be on the watch for such persons at 'the places they may be expected to be, in view of the license and consent given. So,' in this case, if the boy Earl was a licensee, 'and' not a trespasser, and at a place where the company had impliedly assented the use of its track as a footpath, it was the duty of those operating the train to exercise-watchfulness and care to ascertain if persons were on said track at said place. If the jury should find that Earl was a licensee, then they must determine, in view of all of the evidence, whether the ■employes of the company properly discharged that duty, and, if they did not, whether the failure so to do resulted in causing the injury.

IY. Without referring specifically to. the several ■complaints as to the rulings upon the introduction of evidence, it may properly be said that most of the rulings against the plaintiff impress us as technical, and some of them as incorrect. We do not say more, as it is not likely that on a ré-trial the same questions and rulings will appear. We have, in view of another trial.. refrained, so far as possible, from discussing the weight of the evidence. The appellee’s objection to tne record is not well taken, and appellant’s motion to strike the additional abstract is overruled. For the reasons given, the judgment below is reversed.  