
    NEGLIGENCE — RAILWAYS.
    [Cuyahoga (8th) Circuit Court,
    October 29, 1906.]
    Marvin, Winch and'Henry, JJ.
    Baltimore & O. Ry. v. John Campbell.
    Negligence to Operate Locomotive without Light or Bell at a Point in the Yard where Persons have Long Been in the Habit of Walking.
    Where a railway company maintains yards and switch tracks along docks and near to a much-traveled thoroughfare of a city, and persons have heen in the habit for a long time of walking along these tracks and up to this thoroughfare to the knowledge and with the acquiescence of the company, and without notice or warning to the contrary, a person who, while walking carefully along these tracks at a point near the thoroughfare on a dark night, is struck by a locomotive backing down upon him without warning, may recover from the company for his injuries thus ■sustained. Harriman v. Railway, 45 Ohio St. 11, followed.
    .ERROR to Cuyahoga common pleas court.
    Kline, Tolies & Goff, for plaintiff in error.
    McGrath & Stern, for defendant in error.
   WINCH, J.

This was a personal injury damage ease with verdict and judgment for the plaintiff below.

The petition alleges that,

“On the twenty-fourth day of November, 1903, the defendant was the owner of, and engaged in operating, a line of railway, extending to the village of Fairport in said state of Ohio; that said line of railway, together with two or three side tracks, extended along the easterly •side of Grand river, and the space between Grand river aid said tracks was taken up and occupied by docks, used chiefly for unloading ore ■from vessels and loading the same into cars on defendant’s tracks; that at the point about opposite the center of said village of Fairport, a street called Third street, extending in a westerly direction, intersects ;said tracks at about right angles, and leading directly to the business ■portion of said ore docks; that there are no other streets near by, leading to or from that portion of said ore docks, by reason of which. ■-said Third street was, and for many years had been, a very busy thoroughfare, used at all hours of the day and until late at night, by large numbers of men employed at said docks, and by the employes and officers of boats lying in said river; that a large part of the men :so employed on boats and on said docks, and many other persons having business in the neighborhood of said docks, were obliged to, and did, for many years past, use and walk upon the tracks of the defendant from both directions to the point intersected by said Third street, which was the chief and principal outlet from said docks, leading to the center of said village.
“Plaintiff alleges that the tracks of the defendant had been used in the manner aforesaid, by persons going tQ and from their work at said docks, for more than ten years preceding said twenty-fourth day •of November, 1903, and that the defendant acquiesced in, and consented to, the use of its tracks in the .manner aforesaid and made no objections thereto.
“On said twenty-fourth day of November, 1903, plaintiff was an •employe of the “Hartnell,” a vessel plying the waters of the Great Lakes and then lying at said docks; that at about 6 o’clock in the evening of said day, he left his boat to go to the post office, and entering upon the tracks of the defendant, walked in a northerly direction toward the point of intersection of said Third street; that while thus walking in a careful, safe and proper manner, between two of said tracks along and upon a well-beaten path, suddenly and instantly without any notice or warning to him whatsoever, and when he was at a point within 150 feet from said Third street, a switching engine of the •defendant under the charge and control of its employes, silently backed ■down upon him from behind, and «struck him on the back, below the left shoulder, suddenly throwing him forward in *sueh a manner that .he fell with his left arm across the rail, so that the same was then and there run over by said locomotive, and so badly crushed and mangled that the same had to be immediately thereafter amputated near the shoulder.
“Plaintiff further says that said locomotive was without a headlight and that no signal of its approach was given by the ringing of its bell or otherwise; that had there been a headlight on the rear of said •engine, its reflection would have given Him notice and warning; and no headlight being thereon, he was deceived and misled and induced to believe that he was in safety, and that no train or locomotive was approaching.
“That said injuries were received in the manner aforesaid without any fault on his .part, but solely by and on account of the grosá negligence of the defendant through its servants and agents in charge of said locomotive; that said negligence consisted chiefly in the failure of the servants of defendant in charge of said locomotive to carry a headlight and in failing to give any signal or warning of the approach of said locomotive; said servants and agents of defendant were also' negligent in failing to see plaintiff before striking him, and in failing to stop said locomotive or slacking speed so as to avoid the injuries plaintiff complains of.”

The bill of exceptions shows that such evidence was introduced to establish the allegations of the petition that the jury might well have' found that the accident occurred in the manner and under the circumstances claimed in the petition. The night was dark; the plaintiff testified that as he proceeded along the beaten path between the tracks, he-looked back frequently and listened, but saw and heard nothing until he was struck. Nobody saw him struck and the train crew did not know they had injured anybody until some time after the accident.

No prejudicial errors appear to have occurred on the trial. The sole question which has given us concern is whether, under the law,, the plaintiff was entitled to recover at all.

His counsel rely upon two cases in this state, Bellefontaine & I. Ry. v. Snyder, 18 Ohio St. 399 [98 Am. Dec. 175], and Harriman v. Railway, 45 Ohio St. 11 [12 N. E. Rep. 451; 4 Am. St. Rep. 507].

Part of the syllabus of Bellefontaine & I. Ry. v. Snyder, supra, reads as follows:

“It is the duty of persons in charge of .ears passing along streets- or other frequented places to exercise great caution; and if, by failure-to do so, a child of tender years is injured, the company is liable in an action by the child.”

The first paragraph of the syllabus in Harriman v. Railway, supra, reads:

“Where a railroad company has for a long time permitted the-public, including children, to travel and pass habitually over its road at a given point, without objection or hindrance, it should, in the-operation of its trains and management of its road, so long as it acquiesces in such use, be held to anticipate the continuance thereof,, and is bound to exercise care, having due regard to such probable use, and proportioned to the probable danger to persons so using its road. ’ ”

Counsel for a railroad company insists that the, liability of the-railroad company in Bellefontaine & I. Ry. v. Snyder, supra, grew out of its negligently running down a child on its tracks, after it saw the; child in a place of danger and could have stopped or warned the child off the track.

The true test in Harriman v. Railway, supra, is claimed to be the negligent keeping on its premises, at a place where it knew the public was accustomed to go, of a thing dangerous in itself, to wit, a torpedo, attractive to children, and which the plaintiff by childish instincts was led to explode.

It is said that the B. & 0. Railroad Company was operating its switch engine in its own yards and in its usual and customary manner on the night Campbell was injured and that at best Campbell was a mere licensee, without invitation or inducement, and that his permitted use of the track was subject to all risks incident to the ordinary use of the track by the company.

Our attention has been called to four cases later than the Harriman ease in which it is claimed that the doctrine of that ease is modified, but our examination of said cases leads us to believe that the Supreme Court has not departed from the rule stated by it in the Harriman case, so far as the same applies to duties of the company to the public upon its tracks at places known by it to be frequented by the public without objection by it.

The ease of Clev. T. & V. Ry. v. Marsh, 63 Ohio St. 236 [58 N. E. Rep. 821; 52 L. R. A. 142], was also a torpedo case, but the boy, Marsh, had been employed by the station agent without authority and without the knowledge of the company to attend to switch lamps and was on his way about that business when injured.

The fourth paragraph of the syllabus reads:

“While a railroad company owes a duty to the public to keep its tracks free from unnecessary danger along where the public are allowed to use such tracks as a way for travel, one who is not using such tracks as such way, cannot be heard to complain of the breach of such duty, and in ease of injury to him, cannot bring the breach of such duty to his aid in attempting to recover for an injury caused by reason of some other alleged negligence of. the company.”

In the case of Cin. H. & D. Ry. v. Aller, 64 Ohio St. 183 [60 N. E. Rep. 205], it appears that Aller departed from the path used by the public and was so injured. Judge Shauck, delivering the opinion, page 193, says of Harriman v. Railway, supra:

“The doctrine of the case is, that when the company became aware that persons were using the road for purpose of their own it became its duty, not to alter the construction of its road, but to operate it consistently with the facts thus known to it.”

The ease of Clev. A. & C. Ry. v. Workman, 66 Ohio St. 509 [64 N. E. Rep. 582; 90 Am. St. Rep. 602], involved the duties of the company toward one of its own employes, using a “speeder” upon the main track, “without any invitation or inducement therefor by the company, but with no objection on the part of the company.”

Judge Davis, on page 541 of the opinion, says:

“The doctrine of Harriman v. Railway, 45 Ohio St. 11 [12 N. E. Rep. 451; 4 Am. St. Rep. 507], does not apply here, because there is in this case no pretense of acquiescence in the public use of the railway track in the way in which it was used by the deceased, nor was there any invitation or inducement held out to the deceased to so use it. ’ ’

The case of Ann Arbor Ry. v. Kinz, 68 Ohio St. 210 [67 N. E. Rep. 479], cites the Harriman ease and suggests that that decision was bottomed upon the sound principle that the railroad company maintained an attractive and dangerous thing^ upon its .premises. It does not suggest that the fir^t paragraph of the syllabus of the Harriman case, which has been heretofore quoted, is not good law, but shows that the law as so stated is not applicable to the facts in Ann Arbor Ry. v. Kinz, supra.

Finally, no Ohio casé has been cited to us which holds a doctrine contrary to that quoted from the Harriman case. The only suggestion of counsel has been, that the ruling was not necessary to a decision of said ease and that the Supreme Court has found it inapplicable to the facts of the other cases cited.

Nor do we believe that the facts of this case show that Campbell was upon the path between the tracks as a mere licensee, without invitation or inducement. To use the language on page 243 of Clev. T. & V. Ry. v. Marsh, supra, his being upon the pathbetween the tracks at that time was induced by the fact that said path had been used for years as a line of travel by the public.

The company must be held to care commensurate with this inducement, so long as it permits the same to continue, without signs or other warning to keep the public off.

To back down upon said path and upon a person walking carefully thereon, in the night season, without warning, as the jury found in this case, is actionable negligence.

Judgment affirmed.

Marvin and Henry, JJ.f concur.  