
    GILLIGAN v. DENVER & R. G. R. CO.
    No. 2501.
    Decided November 24, 1913
    (136 Pac. 958).
    1. Railboads — Injuries to Persons on or near Tracks — Care Required. While a railroad company is not bound to exercise ordinary care to prevent injury to a bare licensee, yet where a building, with the acquiescence of the company, had been erected upon its right of way, and.used continuously for more than forty years, the relationship existing was more than bare licensor and licensee, and the railroad company was bound to use ordinary care to prevent injuring the occupant and his property. (Page 547.)
    '2. Negligence — Nature and Elements of Negligence. Where the law imposes the' duty of ordinary care, there is no distinction between negligence arising from negative acts of omission and positive acts of commission. (Page 550.)
    3. Railroads — Injuries to Persons on or near Tracks. Where a railroad company permitted a house to be erected upon its right of way, the duty imposed upon it to exercise ordinary care to prevent injury to the occupant is not limited to an injury occurring on its track. (Page'551.)
    -4. Railroads — Injuries to Persons on or near Tracks — Admissibility of Evidence. In an action against a railroad company for an injury to an occupant of a house located on its right of way, evidence as to the use and occupation of the right of way by other persons near the house in question was properly admitted to show the character and extent of the use and the relationship of the parties. (Page 553.)
    Appeal from District Court, Third District; Son. G. W. 'Morse, Judge.
    Action by Patrick J. Gilligan against the Denver & Rio 'Grande Railroad Company.
    Judgment for plaintiff. Defendant appeals.
    AKKIRMED.
    
      
      Van Cotí, Allison <& Biter for appellant.
    
      Willard Hansen for respondent.
    
      
       Young v. Clark, 16 Utah, 42, 50 Pac. 832; Teakle v. San Pedro, L. A. & S. L. Ry. Co., 32 Utah, 276, 90 Pac. 402, 10 L. R. A. (N. S.) 486; Palmer v. Railroad, 34 Utah, 466, 98 Pac. 689, 16 Ann. Cas. 229, distinguished.
    
   FRICK, J.

This was an action to recover damages for personal injuries and loss of and damages to personal property which respondent suffered and sustained through the alleged negligence of appellant. The accident causing the injury occurred on the 15th day of February, 1912, at- Bingham Canyon, Salt Lake County. The injury and damages aforesaid were caused by a train composed of an engine and three-oars loaded with ore. The engine and cars were derailed,, or left the track, rather, in descending a steep grade after the trainmen in charge had lost control of the same. It was-in substance alleged in the complaint that the trainmen in. charge of said train lost control thereof for the reasons:

(1) That appellant had negligently failed to equip the-engine and cars aforesaid with proper and sufficient braking, appliances; (2) because the rails were so worn .that the braking appliances on said engine and cars were useless, causing the wheels of said cars to skid on the rails and to leave the-track; .and (3) because the train was negligently managed and operated at a great and dangerous rate of speed while descending a steep grade, and that for all of said reasons the-engine and cars left the track and caused the injury and damages complained of.

The undisputed facts, in substance, are: That on the 15th. day of February, 1912, the respondent, as tenant, was occupying a portion of a certain building in Bingham Canyon, using the same for a tailoring establishment, which business-- or occupation respondent followed; that early on the morning of the day aforesaid the train referred to above, composed of what is called a Shay engine and three cars loaded with sulphide ore, was descending a steep grade on what is called the “Copper Belt” railroad, which is located along the side of the mountain and passed the rear end of the building occupied by respondent; that before reaching the point: where said building was located the trainmen lost control of said train, and when the train had run down the track at a very high rate of speed to about where said building was located the three cars left the track on- the side nearest- the mountain, while the engine cut loose from the cars, left the track, and rolled down the hill, striking the wall of the building adjoining the one occupied by respondent, while the tender and tracks passed into and through the building occupied by him in which he and others were asleep' at the time; that the tender and tracks aforesaid, in passing through the building, seriously injured the respondent and destroyed a large amount of tailoring goods which he had in stock; that the building in question was located entirely within a line drawn one hundred feet parallel to the line of said railroad track which was owned and operated at the time of the accident, and for a long time prior thereto, by the appellant as the successor of the original owner, which was known as the Bingham Canyon & Camp Floyd Eailroad Company, or^ ganized in September, 1872; that appellant claimed said one hundred foot strip on which said building was standing as being a portion of its right of way, and which strip had been claimed by the original company as more particularly set forth in the case of Railroad Co. v. Stringham, 38 Utah, 113, 110 Pac. 868, to which case we refer for a full statement of the facts constituting appellant’s claim of title to said one hundred foot strip ; that said building was fronting on the principal street of said Bingham Canyon, which street was running lengthwise through the town somewhat irregularly, following the course of the canyon, and the buildings of the town were constructed along either side of said street; that as early as 1870 or 1871 a building had been erected on the spot where the one in question stood, which, for a long time, was used as a public school; that thereafter said building was destroyed by fire, and another one was erected on the same spot; that the building in question, with a number of others on either side thereof, were erected on said one hundred foot strip, and all of said build-ings, including the one in question, ever since 1870 or 1871 bad continuously been occupied and' used for either public or private purposes, and the ground upon which they stood had been so occupied and used under a claim of ownership, and during all of said time, and at the time of the accident, both buildings and ground were treated and regarded by all as private property which was owned by the occupants or their landlords; that neither the appellant, nor any of .its predecessors in interest, had at any time during the time aforesaid, or at all, objected to the use of said buildings and ground for the purposes aforesaid, nor made any claim of ownership to said one hundred foot strip, except as such claim might be deduced from the filing of the maps and plats and the construction and operation of the railroad as explained in the Stringham Case before referred to; that the railroad referred to in said case originally was not constructed as far up the canyon as the point of the accident in question, and' the upper portion of the railroad where the accident occurred was not constructed until some time in ¡1875, when it was constructed as a tramroad with twenty-pound rails per yard laid two feet apart, which road was operated by horse power in propelling cars upgrade and by means of gravity in the opposite direction; that the railroad in question was not constructed nor operated in the manner as described it was on the date of the accident until about the year 1902 and thereafter, at which time the tramroad was replaced by an ordinary narrow guage railroad.

All of the evidence relating to the use of the one hundred foot strip, and the buildings thereon, and the claims made by the apparent owners and occupants thereof, was admitted over appellant’s objections.

We shall not set forth the evidence describing the accident, nor that with respect to the alleged negligence of appellant, since counsel do not sexdously contend that there was not sufficient evidence with respect to the matters complained of to authorize a finding by the jury that appellant was guilty of negligence in the sense that it and its employees in charge of the train omitted to exercise ordinary care.

Dor the purposes of this decision only, we shall also assume, without deciding, that the legal title and ownership of the one hundred foot strip on which the building in question was located was in appellant, and that it acquired title therto from its predecessors in interest as before stated. The record discloses that this was the view taken by the trial court. Upon that theory the court in substance charged the jury as follows: That while the right of way of the railroad company partakes of all the incidents of private ownership and control “nevertheless if, with the knowledge and without the objection of the said company, persons are permitted to use the right of way either for the erection and maintenance thereon of buildings or for a passageway over the same, and such use for a very long period of time has been definite, open, and continuous, a license from the company to make such use of the right of way is presumed, and it wuuld be the duty of the company to exercise reasonable and ordinary care in the operation of its railroad to prevent accidents and injuries to such persons and their property.” The appellant requested the court to charge the jury that the respondent was a bare licensee on its right of way, and as such it owed him no duty except to refrain from “willfully, wantonly, or maliciously doing injury, and there is no proof in the case that the injuries of which plaintiff complains were so inflicted.” The court refused to so charge, but submitted the case to the jury upon the theory outlined in the portion of the court’s charge we have quoted. The jury found' for the respondent, assessing his damages in the sum of $45,000, and judgment was duly entered, from which this appeal is prosecuted.

The principal assignment of error relates to the giving of the charge of the court quoted above, _ and in refusing to charge as requested. Exceptions to the charge as given and to the refusal to charge as requested were taken at the proper time and in the manner required by our practice. Counsel for appellant, stating it in their own language, contend that:

“Inasmuch as the defendant (appellant) was the owner of the ground on which the building occupied by the plaintiff (respondent) stood, tbe plaintiff, if not a trespasser, was at most a bare licensee, and tbe only duty tbe defendant owed bim was to refrain from injuring bim willfully or wantonly. There was no duty on tbe part of tbe defendant to exercise ordinary care for bis protection, and tbe trial court committed error in so charging tbe jury.”

Tbe question therefore arises:

What, in view of tbe undisputed facts, were tbe relations existing between them, and' what duty, if any, did tbe law impose upon appellant with respect to tbe care it was required to exercise in order to prevent injury to tbe persons and damage to tbe property of those who were occupying and using tbe one hundred foot strip claimed as a right of way by it?

Tbe relation that parties may sustain toward each other, and tbe duties arising therefrom, cannot, in any given ease, always be stated with precision. There are, however, some well-recognized fundamental legal principles from which, when applied to tbe facts conceded or found in any given case, both tbe relation and tbe duties arising therefrom may be deduced. Thirty years ago the New York Court of Appeals, in the case of Barry v. New York Cent. & H. R. Ry. Co., 92 N. Y. at page 292, 44 Am. Rep. 377, clearly pointed out that where a railroad company knowingly permits others to use, occupy, or pass over its right of way, although it be for their own convenience, for a long period of time, such permissive use, although in one sense a mere license, nevertheless creates certain rights in the persons using the right of way which the railroad company is bound to recognize, and as to them it owes the duty of exercising ordinary care in the operation of its trains and in the management of its railroad in order to prevent injuring them or their property. The doctrine just referred to is clearly stated by Mr. Justice Andrews in the following words:

“There can. be no doubt that the acquiescence of the defendant for so long a time, in the crossing of the tracks by pedestrians, amounted to a license and permission, by the defendant, to all persons to cross the tracks at this point. These circumstances imposed a duty upon the defendant, in respect of persons using the crossing to exercise reasonable care in the movement of its trains. The company had a lawful right to use its tracks for its business, and could have withdrawn its permission to the public to use its premises as a public way, assuming that no public right therein existed; but, so long as it permitted the public use, it was ■charged with knowledge of the danger to human life from operating its trains at that point, and was bound to use such reasonable precaution in their management as ordinary prudence dictated to protect wayfarers from injury.”

Tbe New Tort Court of Appeals,'thus, at an early date, made a clear distinction between the occupation or use of a railroad right of way which is open and long continued, and a mere casual use thereof, although the latter usé may also be permissive. Dor cases illustrating the rights of a bare licensee, see Nicholson v. Erie Ry. Co., 41 N. Y. 525, and Sutton v. New York Cent. & H. R. Ry. Co., 66 N. Y. 243. In the cases just cited it is held that a railroad company is not required to exercise ordinary care in the operation and management of its trains to prevent injury to one who is on its property as a bare licensee or a trespasser. This court has also so held. (Palmer v. Railroad, 34 Utah, 466, 98 Pac. 689, 16 Ann. Cas. 229.) As pointed out in the Barry Case, supra, however, where persons are in long and continued use or possession of the railroad right of way, the relation between the railroad company and such persons is more than that of bare licensor and licensees, and therefore, as to such persons, the company is bound to exercise at least •ordinary care to prevent injuring them while they are on the right of way in the capacity aforesaid. The doctrine outlined above has been adopted by so many courts of last resort in this country that it may be said to be one of general application. This is practically conceded by counsel for appellant. It is also conceded by them that his court is firmly •committed to the doctrine as stated in the Barry Case. See Young v. Clark, 16 Utah, 42, 50 Pac. 832, and Teakle v. San Pedro, L. A. & S. L. Ry. Co., 32 Utah, 276, 90 Pac. 402, 10 L. R. A. (N. S.) 486. In the latter ease the rule is fully elucidated and applied, and hence we refrain from citing tie many cases where the doctrine has been invoked. The case at bar is, however, much stronger in the facts and circumstances from which a duty to those using the right of' way may be implied than are most of the cases coming within the class. In the ease at bar the occupation and use of the one hundred foot strip was open, continuous, and under a claim of right for a period exceeding forty years. The-use of the property was the same as if owned by the occupants rather than that of a bare licensee. While it is true-that respondent had not occupied the property for so long a time, yet his rights were the same as those of his predecessors in interest, and appellant for that reason owed' him the-same duty as occupant of the property as though he had been in possession thereof for the full period of time aforesaid. There can be no doubt that, under the undisputed -facts, the respondent was not merely a bare licensee to whom the appellant owed no duty except to refrain from willfully or wantonly injuring1 him or his property, but upon the contrary it owed him the duty of exercising ordinary care and diligence in the management, operation, and control of its railroad and trains to prevent injury.

Appellant’s counsel insist, however, that in view that its-ownership of the one hundred foot strip is at least tacitly conceded, therefore, although some duty was by law imposed, on appellant, yet as against respondent it was only required to refrain from acts of active, as eontradis-tinguished from acts of passive, negligence. It is said that while respondent might, perhaps, have claimed protection as against active negligence, yet that he could not do-so as against what is termed passive negligence. That is,, mere acts of omission as contradistinguished from acts of commission. We cannot yield assent to the contention. Nor can we conceive any good reason for the supposed distinc tion. Where the law imposes the duty of ordinary care, it does not and cannot distinguish between negligence arising from negative acts of omission or positive acts of commission. The only question that the law concerns itself with under such circumstances is: Do the acts complained' of constitute-want of ordinary care, and, if so, was the alleged negligence which is the result of want of ordinary care the proximate -cause of the injury in issue ? Where the acts complained of are in fact willful or wanton, they as a general rule are affirmative, and as such are actionable in favor of a bare licensee, and, indeed, may be so in favor of a trespasser. (Palmer v. Railroad, supra.) We think that, where the law fixes want of ordinary care as the test of liability, it becomes wholly immaterial whether the want of ordinary care arises from acts of omission or from acts of commission. That is, the law does not inquire whether the negligence was what is -denominated active rather than passive- — -positive rather than negative.

Counsel with much vigor contend that, although appellant -owed respondent the duty of exercising- ordinary care not to injure him, yet it was only required to exercise such care in case he attempted to cross its railroad track or was in such close proximity thereto as to be in imminent danger from a passing train or cars. In other words, counsel argue that on any portion of the right of way ■apart from the track appellant owed respondent no duty except to refrain from willfully and wantonly injuring him, for the reason that under such circumstances respondent himself was a bare licensee. A number, of cases which it is contended support the foregoing statement of law are cited. Among the numerous cases cited by appellant, we refer to the following as fair samples coming within the class: Carr v. Missouri Pac. Ry. Co., 195 Mo. 214, 92 S. W. 874; Kirby Lumber Co. v. Gresham (Tex. Civ. App.) 151 S. W. 847 Shults v. Chicago, B. & Q. R. R., 83 Neb. 272, 119 N. W. 463; and Chicago, R. I. & P. Ry. v. Payne [Ark.] 146 S. W. 487, 39 L. R. A. (N.S.) 217. We have carefully examined all of the cases cited by counsel, and in our judgment they do not support their contention. The only case that apparently does so is the last case cited, and, when the facts in that ease are carefully considered, it is clearly distinguishable from the •case at bar. It is quite true that it is held in those cases that from the undisputed' facts, or from facts as found, the party injured was a bare licensee, and as suck tbe railroad company-owed bim no duty except to refrain from injuring bim willfully or wantonly. Tbe reason that induced tbe courts to arrive sncb a conclusion in those oases was, however, not tbe one-suggested by counsel, but it was for tbe reason that when the-law was applied to tbe facts in tbe case no other relation than that of bare licensor and licensee was established. Tbe case of St. Louis, etc., Ry. Co. v. McCauley (Tex. Civ. App.) 134 S. W. 798, is, in our judgment, on principle not distinguishable from tbe case at bar. In that case tbe railroad company permitted its right of way some distance away from tbe track and parallel therewith, to be used for upwards of twenty years for a highway, and, in view that such a use was permitted for such a long period of time, it was held that tbe railroad company was required to exercise ordinary care in tbe management, operation, and control of its railroad and trains to prevent injury to those who were using tbe right of way for tbe purpose aforesaid. It was there contended, as it is here, that tbe injured person was a bare licensee, and that therefore tbe company owed bim no duty except to refrain from inflicting willful or wanton injury. Tbe court, however, held as already indicated. We especially refer to that case because it emanates from tbe same court to which counsel refer us as bolding that tbe duty of tbe railroad company to exercise ordinary care is limited to those crossing or who-are attempting to cross its tracks. No attempt was made in tbe McCauley Case, supra, to cross tbe track, and tbe injured person did not approach very near thereto,, but was. injured because of tbe negligent operation of an engine, which frightened her horse, which was bitched to a buggy and by reason of being frightened became unmanageable and ran away injuring tbe plaintiff who was driving bim. Limiting tbe doctrine as counsel suggests would be to rob it of its humanity,, and in most cases would merely amount to

. , keep tbe word'of promise to our ear And break it to our hope.”

We can see neither reason nor justice in such a limitation, and as we read the cases none such is intended to be made by the courts. The rights of respondent and the duty of appellant arose out of the nature and long-continued use of the one hundred-foot strip by the occupants thereof. Had respondent been casually using the one hundred-foot strip- at some point distant from the building in question on the morning of" the accident and had been injured by the engine or cars after they had left the track, a different question might be presented. He was, however, injured at a place where he had a right to be, and appellant had for many years recognized such a right by acquiescing in the use of the ground by the occupants of the buildings. This being so, the law imposed the duty on the appellant of exercising ordinary care for the safety of those who were occupying the one hundred-foot strip while they were where they had a right to be, and so long as its negligence was the proximate cause of any injury inflicted on them they may recover.

We are clearly of the opinion that the court committed no error in charging as it did, and therefore could have committed none in refusing to charge as requested.

Nor did the court err in admitting the evidence with regard to the occupation and use of the one hundred-foot strip at and near the point of the accident. The evidence, under the pleadings, was admitted and was admissible for the purposes of showing the character and extent of the use of said strip, the relation of the parties, and the duty that was enjoined upon the appellant, and for those purposes was clearly proper.

Appellant also offered a request to charge that it was not liable to respondent for any goods of his that were stolen or taken away by others. The court refused this request, and it is insisted that it erred in doing so. Appellant’s rights in that respect were, however, clearly guarded by the court’s general chai’ge, and hence it has no real cause for complaint.

The judgment is affirmed, with costs.

McOARTY, C. J., and STRAUP, J., concur*.  