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can be said as a matter of law that the place is or is not depot grounds. The present case presents the latter situation. The place where passengers get off and on trains, and where goods are loaded and unloaded, and all grounds necessary, convenient, and actually used for such purposes by the public and by the railway company, including the place where cars are switched and trains made up; also the place where tracks are used for storing cars, and where the public require open and free access to the railroad for the purposes of such business, constitute depot grounds. Plunkett v. M. S. S. M. & A. R. Co., 79 Wis.

defendant had at one time maintained

a fence that satisfied the statute in no way relieved it from the statutory consequences of a later insufficient fence; that the presence of a fence insufficient under the requirements of the statute would not prevent the application of the absolute liability provided for in the case of an entire absence of fence; and that the evidence warranted a finding that the absence of such a fence as the statute required had "in whole or in part" occasioned the death. In passing upon the question whether the fact that the deceased entered upon the right of way in violation of an ordinance would preclude recovery, the court said in part, referring to the case of Schwind v. Chicago, M. & St. P. R. Co., 140 Wis. 1, 133 Am. St. Rep. 1055, 121 N. W. 639 (1909): "Recovery was not allowed in the Schwind case because the boy did not know of the danger to be apprehended from railway trains. * * * But recovery was ai lowed because it is said that young boys lack the pertinacity of purpose and the soundness of judgment of the adult, and that their conduct is often controlled by propensities * which would not materially affect the adult. * * The reasons stated are applicable to a boy 15 years of age as well as to one 5 years younger." Concluding its opinion, the court said: "Counsel for appellant urges that it has depressed its tracks at great expense so as to avoid dangerous grade

crossings and enable it to run its trains with the speed and dispatch demanded by the public, and that after it has practically dug a ditch in which to operate its trains, and it is made unlawful for travelers to walk therein, it should be held that those who violate the law take their own chances, and they should not be permitted to recover in case of injury. The legislature has endeavored to protect persons against their own foolhardiness by prohibiting them from walking on railroad tracks except in certain places where they have a right to be. It has also recognized the shortcomings and propensities of the ordinary run of human beings, and has provided an additional safeguard against their dangerous habit of walking along railroad tracks, by requiring that such tracks be fenced. In order to make this requirement sufficiently onerous to insure observance of the duty imposed on the railroads, they were made absolutely liable in the event of their failure to observe the law, where such failure was responsible in whole or in part for the injury. This statutory requirement is in the interest of preserving human life and limb and should not receive any interpretation that would tend to weaken it, unless it is apparent that such interpretation was clearly within the legislative contemplation. The requirement to fence would serve very little purpose in so far as it pertained to persons if it were held that the plaintiff in this

222, 48 N. W. 519; Grosse v. C. & N. W. R. Co., 91 Wis. 482, 65 N. W. 185; Mills & Le Clair L. Co. v. C., St. P., M. & O. R. Co., 94 Wis. 336, 68 N. W. 996 See, also, note in 7 L. R. A. (N. S.) 203. In the light of the above definition of what constitutes depot grounds, it is quite clear that the place where plaintiff entered upon the track at Market street as well as the place of injury were within such definition. A plat showing the defendant's depot, yards, and tracks for a considerable distance north and south of the place of accident was received in evidence and it, together with oral testimony, showed that

case could not recover because of the legislative inhibition against walking on railway tracks. We conclude that the judgment should be affirmed." Ulicke v. Chicago & N. W. R. Co., 152 Wis. 236, 139 N. W. 189 (1912).

A statute providing that railroad companies must at places other than depot grounds fence their tracks, and that in the absence of the required fence a railroad company shall be liable for injuries, not only to animals but also to persons on the tracks, "occasioned in any manner in whole or in part by want of such fence," was involved in the case of Schwind v. Chicago, M. & St. P. Ry. Co., 140 Wis. 1, 133 Am. St. Rep. 1055, 121 N. W. 639 (1909), in which the plaintiff was a boy 10 years of age who, having been sent to market, had walked along a path near the defendant's unfenced tracks, and been overtaken by an engine and run over in a manner causing the loss of an arm.

3. Illinois.

The plaintiff, a boy 10 years and 8 months old, attended school 7 blocks west and 3 blocks south of the place where he resided with his parents. Six blocks east of his home the tracks of the defendant railroad company crossed at right angles the street upon which he resided and these tracks he was obliged to cross upon his way to school. The roadbed of the defendant along this place was 3 or 4 feet

above the level of the ground. The two inside tracks were passenger tracks and were 12 or 2 feet higher than the outside tracks. On each side of the right of way was a ditch 4 or 5 feet wide, outside of which on either side of the right of way was a fence consisting of posts with 4 or 5 strands of barbed wire. The street upon which plaintiff resided was not open across the tracks, but public crossings were provided in the street immediately north and the one immediately south of that upon which he lived. On the day of the injury which gave rise to this action plaintiff started for school after lunch, intending to cross the railroad tracks at the foot of the street upon which he lived. It was shown that while the street terminated at the right of way, the fence at this point was partly down, the wire and at least two of the posts being gone. Just as the plaintiff and some boys who were going to school with him got upon the railroad right of way the school bell rang and at the same time a long freight train was seen by them coming from the north on the west track. Seeing that they could not cross in front of the train, plaintiff and his companion began to run south along the track with the intention of reaching the street crossing south before the train. Plaintiff ran along the west end of the ties on the west passenger track, and while so doing upon some coarse gravel which the track was ballasted.

stepped with

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plaintiff was hurt about 600 feet south of the depot at Kenosha; that immediately north of the station was a large number of switch tracks; that at least four of them connected with the main track to the west and two extended south across Market street and ran to quite extensive yards lying some distance south thereof; and that the Y track on which plaintiff was injured was one of the busiest parts of the yard in Kenosha.

There being no duty to fence, the question recurs whether plaintiff was guilty of contributory negligence. He testified that on crossing

stumbled upon this and fell, rolling under the train and thereby sustaining an injury which required the amputation of his foot. In his action to recover damages for the injury thus sustained plaintiff relied upon the alleged negligent failure of the defendant to construct, on each side of its tracks, a substantial wall or fence, in accordance with an ordinance of the city, and further, upon its negligent failure to limit the speed of trains at such place to a low rate until the fence required by the ordinance should be erected. The appellate court affirmed a judgment for the plaintiff, but granted a certificate of importance to the supreme court. That court. passing upon the appeal held (1) that the ordinance in question was intended for the protection of persons; (2) that it was a question for the jury whether the condition of the fence and the failure of the defendant to observe the ordinance requirement in that regard was a proximate cause of the accident; and (3) that the act of the plaintiff in running along the ties after having entered the defendant's right of way by use of the hole in the fence maintained by the defendant was not only an intervening cause of the accident but was an act which the defendant in the exercise of due care might reasonably have anticipated would result from its failure to keep the fence in the condition required by the ordinance. Heiting v. Chicago, R. I. & P. R. Co., 252 I11.

466, Ann. Cas. 1912 D 451, 96 N. E. 842 (1911), aff'g 162 Ill. App. 403 (1911).

C. Fence duty owing only to adjoining

owner.

See New York Cent. & H. River R. Co. v. Price, 86 C. C. A. 502, 159 Fed. 330, 18 N. C. C. A. 728n, 16 L. R. A. (N. S.) 1103 (1908) in which recovery was sought on account of the death of a boy 61⁄2 years old who, in running after a toy that had fallen on the defendant's right of way, which was unfenced notwithstanding the Massachusetts statute, trespassed upon the tracks and was killed by a passing freight train.

D. Premises without operation of statute.

1. Massachusetts.

A child between 3 and 4 years or age was injured while upon defendant's railroad track. The evidence showed that the child was a trespasser upon the track at the time and place of the accident. But there was no evidence that, either in the exercise of a public or private right of way or of any other right he was rightfully upon defendant's track. The evidence did not show misconduct on the part of defendant or its servants which contributed to the injury to plaintiff. Defendant did not maintain a fence between its freight yard and the adjoining premises from which plaintiff

Market street he looked south and saw no train, though he says one might be standing there about 100 feet to the left. The view south was unobstructed for a mile or more, and the train that struck him must have been plainly visible had he looked and charged his mind with what he was doing. According to the fireman, who was the only member of the train crew that saw him before he was injured, he walked north along the path about five to six feet from the track, and when he came to the water he stepped toward the track just in front of the engine and was instantly struck by the pilot beam and

entered upon the yard Defendant recovered a judgment, and plaintiff excepted. The court in overruling the exceptions held that the railroad company was under no obligation to erect or maintain a fence between its freight yard and the adjoining premises, and that plaintiff failed to make out a case against defendant. Khinoveck v. Boston & M. R. R., 210 Mass. 170, 96 N. E. 52 (1911).

2. Michigan.

A boy 5 years old sustained personal injuries when in defendant's switch yard, and he sued defendant by his next friend to recover damages therefor. Plaintiff got upon defendant's premises from a street which ran up to defendant's right of way at right angles, but did not cross it. Defendant had formerly maintained a fence along its right of way at this point, and posts were still there and some of the wire was still hanging to some of the posts. The only negligence relied on by plaintiff was the failure of defendant to maintain a fence along its premises, as provided by statute. At the conclusion of plaintiff's evidence, the court directed a verdict for defendant, on the ground that the accident occurred within the yard limits of the railroad company. Plaintiff appealed, and in affirming the judg ment, the court held that the railroad company could not be held liable for its failure to fence its right of

way at such point, since the undisputed facts showed that it was within its yard limits. Burtram v. Michigan Cent. R. Co., 148 Mich. 166, 111 N. W. 749 (1907).

3. Nebraska.

A 7-year-old boy, while standing upon one of defendant's flat cars in its yards was thrown from the car when the car was struck by a backing train, so sustaining injuries from which he died. His administrator sued the railroad company to recover damages for his death. Plaintiff's petition alleged that the accident occurred in defendant's switch yard; that for many years there had been situated immediately east of the yard a public school building, attended by from 300 to 400 children; that a playground equipped with amusement ap paratus was maintained upon the school grounds; that defendant was negligent in not erecting and maintaining a fence or wall to prevent children from going upon the tracks in the yards, and in not providing a lookout to warn children away from the tracks; that on the day of the accident there was standing on a flat car, within 50 to 75 feet of the school grounds, some brilliantly painted machinery, which attracted the deceased's attention to the car; that he climbed upon the car, and that while decedent was on the car and defendant was aware of his perilous position, it ran

hurt. He says he did not look for a train from the time he left Market street. Such conduct in a grown person familiar with the frequent passage of trains over those tracks and in full possession of his senses spells negligence as a matter of law, and the trial court properly directed a verdict for the defendant.

By the Court. Judgment affirmed.

one of its trains against the car, causing decedent to be thrown therefrom and to sustain injuries from which he died. Defendant's answer pleaded negligence on the part of the child, and also on the part of the father, and alleged that the child was a trespasser on the car. It appeared that on the afternoon of the accident, after school was dismissed, six boys, including decedent, the oldest of whom was 12 years of age and the youngest 7, went to the school grounds to play. When there, they saw the brilliantly painted threshing machine on the car on the fourth track, and went over to play there. It was shown that children frequently played on and about the cars in the yards, although efforts were made by the parents and teachers to keep them away, and balls were often thrown or batted in among the tracks, and that boys would go after them; and that this occurred for so long a time that it must have been within the knowledge of the defendant and its employees. The court, in affirming a judgment for plaintiff held that there was testimony from which the jury might have found that the engineer of the switching crew, if he had exercised care which the proximity of the school building and the habits

of the children in the locality required, could have seen the boys in time to have prevented the accident; and that the findings of the jury, that there was a lack of reasonable care on the part of defendant and its employees, was sustained by the evidence. The court said: "It is true, as defendant contends, that railroad companies are not obliged by statute to inclose their yards within the limits of cities or villages; but the fact that the statute does not make fencing obligatory has no bearing upon the question whether ordinary care and due regard for human life, considering the proximity of such dangerous agencies as moving cars and engines to a place where the presence of children might reasonably be expected, did not demand more vigilance than under other circumstances. What is reasonable care may vary with the circumstances of each case, and the jury were entitled to determine whether or not the defendant was guilty of negligence in failing to inclose its tracks under such conditions, and in failing to take note of the presence of the children on the cars and tracks." Krummack v. Missouri Pac. R. Co., 98 Neb. 773, 154 N. W. 541 (1915).

J. H. M.

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