Craig v. Mount Carbon Co.

45 F. 448, 1890 U.S. App. LEXIS 2274

• Court: U.S. Circuit Court for the District of West Virginia
• Decided: December 3, 1890
• Status: Published

Opinion

Jackson, J.,

(charging jury, after stating the facts as above.)

1. lithe jury finds from tlie evidence that the plaintiff’s intestate at the time of his death was riding on a railroad velocipede over and on the track of the defendant company without first having obtained its consent for that purpose, then, under such a state of facts, he was a trespasser, and the plaintiff cannot maintain this action, unless they further find from the evidence that there was willful negligence on the part of the defendant company, which could have been avoided, in which event he could.

2. If the jury find from the evidence that the plaintiff’s intestate applied to the general manager of the company for permission to use its road for the purpose of running his velocipede on it, and obtained from the general manager the right to use it at his own risk, then plaintiff cannot maintain this action, unless the defendant was guilty of willful negligence.

3. If the jury find from the evidence that the plaintiff’s intestate had for a month been in the habit of running his velocipede on defendant’s road without objection on its part, the mere a&juiesence on the part of the company did not give him the right to use the road for such pur-

. pose, but in such case he was a trespasser, and could not maintain this action unless the defendant was guilty of willful negligence.

Yerdicl for defendant.