SEAMAN, District Judge,
after stating the case as above, delivered the opinion of the court
If there is evidence in this record which would sustain a verdict that the injury of the plaintiff was caused by a breach on the part of the defendant of a duty or obligation which it had incurred towards the plaintiff, it is clear that the question of its liability was for the jury to determine. Failing such evidence, it would become a question of law, to be withdrawn from the jury by directing a verdict Even if the evidence is “clearly preponderant” against negligence, or is “of such conclusive character that the court, in the exercise of a sound judicial discretion, would he compelled to set aside a verdict returned in opposition to it,” this responsibility may be pressed upon the court. Pacific Co. v. Pool, 160 U. S. 438, 440, 16 Sup. Ct. 338; Railway Co. v. McDonald, 152 U. S. 262, 283, 14 Sup. Ct. 619, and cases cited.
The plaintiff, at the time of his injury, was neither in the relation of passenger, nor of one in a public crossing or place in which the public were licensed to travel, but, upon the undisputed facts, was [204]*204a mere intruder on the tracks of the defendant, — technically, a trespasser; and this record excludes any of the elements of implied license or invitation to such use which have given rise to much discussion and diversity of views in the courts. Therefore the inquiry is here squarely presented: What is the duty which a railway company owes to a trespasser on its tracks, and how and when does the duty arise? The decisions upon this subject uniformly recognize that the trespasser cannot be treated as an outlaw; and, at the least, that, if wantonly injured in the operation of the railroad, the company is answerable in damages. Clearly, then, an obligation is placed upon the company to exercise some degree of care when the danger becomes apparent. Is it, however, bound to foresee or assume that rational beings will thus enter as trespassers in a place of danger, and to exercise in the running of its trains the constant vigilance in view of that probability which is imposed for public crossings? There are cases which would seem to hold this strict requirement (see note 1, Thomp. Neg. 448; Railroad Co. v. St. John, 5 Sneed, 524); but by the great preponderance of authority, in this country, and in England, the more reasonable doctrine is pronounced, in effect, as follows: That the railroad company has the right to a free track in such places; that it is not bound to any act or service in anticipation of trespassers thereon; and that the trespasser who ventures to enter upon a track for any purpose of his own assumes all risks of the conditions which may be found there, including the operation of engines and cars. Wright v. Railroad Co., 129 Mass. 440; Railroad Co. v. Hummell, 44 Pa. St. 375. The decision by this court in Railway Co. v. Tartt, 24 U. S. App. 489, 12 C. C. A. 618, and 64 Fed. 823, adopts the view held in this line of cases, citing the authorities of which repetition here is unnecessary. The same doctrine prevails in Minnesota, where the injury in question arose.- Johnson v. Truesdale, 46 Minn. 345, 48 N. W. 1136; Studley v. Railroad Co., 48 Minn. 249, 51 N. W. 115. In the latter case it was held that there could be no recovery “unless the engineer saw the girl in time to avoid the accident, and then was guilty of such gross negligence in not trying to avoid it as to evince a reckless disregard of human life”; and the opinion gives this further exposition of the rule:
“The defendant’s engineer was under no obligation to anticipate a trespasser, or to look out for persons walking upon the track. But upon discovering plaintiff’s intestate across the cattle guard, as be claims sbe was when he noticed that she was in danger, it became the engineer’s duty to use proper care to avoid running her down. If he failed to exercise proper care, he would necessarily be grossly negligent, and evince a reckless disregard of human life.” Studley v. Railroad Co., supra.
So, in Wisconsin in Anderson v. Railway Co., 87 Wis. 195, 204, 58 N. W. 79, 82, it is said:
“The use of a railroad is exclusively for its owners, or those acting under its authority; and the company is not bound to the exercise of any active duty of care or diligence towards mere trespassers on its track, to keep a. lookout to discover or protect them ."rom injury, except that, when discovered in a position of danger or peril, it is its duty to use all reasonable and proper effort to save and protect them from the probable consequences of their indiscretion or negligence.”
[205]*205The well-established and just rule which holds the railroad company to the exercise of constant and strict care against injury through its means is applicable only to the relation on which it is founded, of an existing duty or obligation. This active or positive duty arises in favor of the public at a street crossing or other place at which it is presumable that persons or teams may be met. It is not material, so far as concerns this inquiry; whether the place is one for which a lawful right of passage exists, as it is the fact of notice to the company, arising out of its existence and the probability of its use, which imposes the positive duty to exercise' care; the requirement of an extreme degree of care being superadded because; of the hazards which attend the operations of the company. The case of a trespasser on the track, in a plací; not open to travel, is clearly distinguishable in the absence of this noiice to the company. There is no constructive notice upon which to base the obligation of constant lookout for Ms presence there, and no actual notice up to the moment the trainmen have discovered the fact of his' peril. As that peril comes wholly from his unauthorized act and temerity, tlu; risk, and all positive duty of care for his safety, rests with the trespasser. The obligation of the company and its operatives is not, then, pre-existing, hut arises at the moment of discovery, and is negative in its nature, — a duty, which is common to human conduct, to make all reasonable effort io avert injury to others from means which can be controlled. This is the issue presented here. It excludes all inquiry respecting the character of the roadbed, cattle guard, locomotive, brake appliances, or other means of operation, or of the speed or manner of running the train up to the moment of notice, because no breach of positive duty is involved. It is confined to the evidence relating to the discovery by the engineer and fireman of the plaintiff's peril, and to the efforts then made to avert the injury, and, out of that, to ascertain whether, in any view which may justly he taken, it is shown that these men, or the engineer, in disregard of the duty which then confronted then;, neglected to employ with reasonable promptness the means at hand for stopping the train. The contention on behalf of the plaintiff affirms this upon the following propositions, substantially: (1) That negligent delay is expressly shown by the plaintiff's personal testimony; and (2) that, laying aside the adverse testimony introduced by the defendant, the fact of such delay is dearly inferable from that on (he part of the plaintiff, taken as a whole. Unless one or both of these claims are well-founded, the inquiry is readily solvable, as both presumption and affirmative proof are clearly with the defendant.
1.
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SEAMAN, District Judge,
after stating the case as above, delivered the opinion of the court
If there is evidence in this record which would sustain a verdict that the injury of the plaintiff was caused by a breach on the part of the defendant of a duty or obligation which it had incurred towards the plaintiff, it is clear that the question of its liability was for the jury to determine. Failing such evidence, it would become a question of law, to be withdrawn from the jury by directing a verdict Even if the evidence is “clearly preponderant” against negligence, or is “of such conclusive character that the court, in the exercise of a sound judicial discretion, would he compelled to set aside a verdict returned in opposition to it,” this responsibility may be pressed upon the court. Pacific Co. v. Pool, 160 U. S. 438, 440, 16 Sup. Ct. 338; Railway Co. v. McDonald, 152 U. S. 262, 283, 14 Sup. Ct. 619, and cases cited.
The plaintiff, at the time of his injury, was neither in the relation of passenger, nor of one in a public crossing or place in which the public were licensed to travel, but, upon the undisputed facts, was [204]*204a mere intruder on the tracks of the defendant, — technically, a trespasser; and this record excludes any of the elements of implied license or invitation to such use which have given rise to much discussion and diversity of views in the courts. Therefore the inquiry is here squarely presented: What is the duty which a railway company owes to a trespasser on its tracks, and how and when does the duty arise? The decisions upon this subject uniformly recognize that the trespasser cannot be treated as an outlaw; and, at the least, that, if wantonly injured in the operation of the railroad, the company is answerable in damages. Clearly, then, an obligation is placed upon the company to exercise some degree of care when the danger becomes apparent. Is it, however, bound to foresee or assume that rational beings will thus enter as trespassers in a place of danger, and to exercise in the running of its trains the constant vigilance in view of that probability which is imposed for public crossings? There are cases which would seem to hold this strict requirement (see note 1, Thomp. Neg. 448; Railroad Co. v. St. John, 5 Sneed, 524); but by the great preponderance of authority, in this country, and in England, the more reasonable doctrine is pronounced, in effect, as follows: That the railroad company has the right to a free track in such places; that it is not bound to any act or service in anticipation of trespassers thereon; and that the trespasser who ventures to enter upon a track for any purpose of his own assumes all risks of the conditions which may be found there, including the operation of engines and cars. Wright v. Railroad Co., 129 Mass. 440; Railroad Co. v. Hummell, 44 Pa. St. 375. The decision by this court in Railway Co. v. Tartt, 24 U. S. App. 489, 12 C. C. A. 618, and 64 Fed. 823, adopts the view held in this line of cases, citing the authorities of which repetition here is unnecessary. The same doctrine prevails in Minnesota, where the injury in question arose.- Johnson v. Truesdale, 46 Minn. 345, 48 N. W. 1136; Studley v. Railroad Co., 48 Minn. 249, 51 N. W. 115. In the latter case it was held that there could be no recovery “unless the engineer saw the girl in time to avoid the accident, and then was guilty of such gross negligence in not trying to avoid it as to evince a reckless disregard of human life”; and the opinion gives this further exposition of the rule:
“The defendant’s engineer was under no obligation to anticipate a trespasser, or to look out for persons walking upon the track. But upon discovering plaintiff’s intestate across the cattle guard, as be claims sbe was when he noticed that she was in danger, it became the engineer’s duty to use proper care to avoid running her down. If he failed to exercise proper care, he would necessarily be grossly negligent, and evince a reckless disregard of human life.” Studley v. Railroad Co., supra.
So, in Wisconsin in Anderson v. Railway Co., 87 Wis. 195, 204, 58 N. W. 79, 82, it is said:
“The use of a railroad is exclusively for its owners, or those acting under its authority; and the company is not bound to the exercise of any active duty of care or diligence towards mere trespassers on its track, to keep a. lookout to discover or protect them ."rom injury, except that, when discovered in a position of danger or peril, it is its duty to use all reasonable and proper effort to save and protect them from the probable consequences of their indiscretion or negligence.”
[205]*205The well-established and just rule which holds the railroad company to the exercise of constant and strict care against injury through its means is applicable only to the relation on which it is founded, of an existing duty or obligation. This active or positive duty arises in favor of the public at a street crossing or other place at which it is presumable that persons or teams may be met. It is not material, so far as concerns this inquiry; whether the place is one for which a lawful right of passage exists, as it is the fact of notice to the company, arising out of its existence and the probability of its use, which imposes the positive duty to exercise' care; the requirement of an extreme degree of care being superadded because; of the hazards which attend the operations of the company. The case of a trespasser on the track, in a plací; not open to travel, is clearly distinguishable in the absence of this noiice to the company. There is no constructive notice upon which to base the obligation of constant lookout for Ms presence there, and no actual notice up to the moment the trainmen have discovered the fact of his' peril. As that peril comes wholly from his unauthorized act and temerity, tlu; risk, and all positive duty of care for his safety, rests with the trespasser. The obligation of the company and its operatives is not, then, pre-existing, hut arises at the moment of discovery, and is negative in its nature, — a duty, which is common to human conduct, to make all reasonable effort io avert injury to others from means which can be controlled. This is the issue presented here. It excludes all inquiry respecting the character of the roadbed, cattle guard, locomotive, brake appliances, or other means of operation, or of the speed or manner of running the train up to the moment of notice, because no breach of positive duty is involved. It is confined to the evidence relating to the discovery by the engineer and fireman of the plaintiff's peril, and to the efforts then made to avert the injury, and, out of that, to ascertain whether, in any view which may justly he taken, it is shown that these men, or the engineer, in disregard of the duty which then confronted then;, neglected to employ with reasonable promptness the means at hand for stopping the train. The contention on behalf of the plaintiff affirms this upon the following propositions, substantially: (1) That negligent delay is expressly shown by the plaintiff's personal testimony; and (2) that, laying aside the adverse testimony introduced by the defendant, the fact of such delay is dearly inferable from that on (he part of the plaintiff, taken as a whole. Unless one or both of these claims are well-founded, the inquiry is readily solvable, as both presumption and affirmative proof are clearly with the defendant.
1. The plaintiff testifies, in effect, that he saw the train when it was near the depot, steaming towards him; that “a little ways from the depot the engineer seemed to be looking towards him”; “and then, about halfways between” where he was caught and the depot, he says, “I saw him turn around and look at me;” and “I was hollering, and making motions with my hands, jerking my leg; at the same time he turned around and looked at me.” 'Notice cannot be imputed upon the fact alone that the engineer was in position to see the plaintiff on the track, but Ms presence must have been observed under circumstances which clearly impute knowledge of his helpless condition. [206]*206This may be shown by circumstantial evidence, — by the “presumptive inference from physical facts,” — which may overcome both the presumption against wrongdoing in the conduct of the trainmen, and their positive testimony that the plaintiff was not discovered until “the engine was within three or four car lengths of him.” And upon these premises it is argued that the above version given by the plaintiff, standing alone, and under the conditions in which he was placed, is sufficient, without corroborating circumstances, to raise an issue which must be determined by the jury. To so affirm would, at least, call for the adoption of an extreme view regarding the province of the jury; but decision is not required upon the bald proposition, because it ignores other features of the testimony upon the same side, either conflicting or qualifying, to which just effect must be given, as follows: (1) On cross-examination the plaintiff admitted that he made a statement of the facts, on the clay following the injury, in which he said: “I saw an engine with a long string of cars coming towards me, and, when engine was about three car lengths from me, I shouted at engineer, but could not attract his attention. I then tried it by waving a red pocket handkerchief, and this, too, failed.” And he then testifies that this is true and correct, except that it should have read “three or four car lengths.” Such statement, taken by a representative of the adverse party, is always open to explanation and suspicion, when tendered by way of admission against interest; but here it is distinctly adopted by the plaintiff, and made a part of his testimony. The statement contains no suggestion either that he was caught when the train was near the depot, or before it was within three or four car lengths of him, or that he gave any prior outcry or signal, or saw the engineer looking in his direction. It clearly differs from-his narration as given on direct examination, and is either contradictorv in those particulars, or makes uncertain whatever of seeming certainty there was in his direct testimony. (2) Two witnesses of the occurrence were produced by plaintiff, Frank J. Ellis and Esther Weilander. They were near the track, but upon opposite sides, the former about 300 feet, and the latter less than 200 feet, from the plaintiff. Both had the plaintiff in clear view, heard his outcry, and observed the approach of the train. Ellis says his attention was first called to the train by plaintiff’s “yelling and motioning with his hands”; thinks the engine was then about 100 to 125 feet east of the street crossing, or within 200 feet of the plaintiff. He did not observe from his appearance or cry that plaintiff was caught, and therefore turned away, and did not witness th'e accident. Esther Weilander was crossing the tracks, in clear view of the cattle guard, but “did not see anybody” there, nor hear any cry, until after she noticed the approach of the train. Then she heard the plaintiff cry out, and noticed he “was caught, and was pulling his foot.” Her location of the engine at the moment of this alarm is certain only in placing it within 200 feet or less of the plaintiff; and she says the engine “slowed off,” but was not stopped before it struck the man. Both of these witnesses were in a position where they would have observed the plaintiff had he been caught in the cattle guard and making outcry previous to the moment.of which they speak; and their [207]*207testimony repels any inference of earlier notice which might otherwise appear from the plaintiffs statement. They also forcibly tend to confirm both the testimony and the theory of the defense that the entry by the plaintiff upon the track, his entanglement in the cattle guard, and his outcry were all momentary, and all occurred when the engine was within 200 feet of him. It follows that the proposition of the sufficiency of proof in the testimony of the plaintiff to submit the case to the jury on the question of earlier notice is not well founded.
2. The second proposition is also untenable. In the estimates made by the bystanders of the distance at a given moment between a moving train and one who is in its pathway, with disaster impending, differences of judgment are probable, and no estimate can be regarded as certain. Their judgment under like circumstances of the exact rate of speed of the train is even more liable to be faulty. Rut this testimony is singularly free from essential difference respecting the distance of the engine from the plaintiff wheu he cried out, as the witnesses for plaintiff place the maximum at about 200 feet, while the trainmen state it at about 150 feet. The former estimate the speed of the train at •'! miles per hour, and the latter at 4 to 5 miles. With reference to the distance which a train may run before it can be stopped under conditions stated in this case, the testimony of experts was received; one produced by the ‘ plaintiff, and three by the defendant. As the issue involved no question of negligence for imperfect appliances, or their failure in accomplishment, this testimony can only be considered for the purpose of establishing presumptively that there was unreasonable delay in the attempt to stop. All of the experts agree in stating that the distance required is dependent upon numerous conditions, and varies widely ; that no fixed rule could be given, nor distance stated with certainty; and that “engines are very queer,” and some of the difficulties were inexplicable. Based upon a speed of 8 miles per hour and other conditions stated, the expert: introduced for the plaintiff says 100 feet “would be a good- fair average,” and “a good ordinary stop.” The others, assuming a rate of 4 miles, say that 190 to 200 feet would be required. If there could be a presumption of delay founded on the former, it would be overcome by the three opposing opinions. There is, therefore, no evidence disputing or weakening the force of that which is furnished by the engineer, fireman, and hrakeman, that every means was applied, and their utmost effort made, immediately on hearing the cry; that the train could not be stopped in time because of conditions named, and particularly the slippery state of the rails, and the impossibility, with the engine running backward, of using sand on one pair of the drivers.
The court was clearly justified in directing a verdict for the defendant, and the judgment is affirmed.