Sorenson v. Chicago, Milwaukee & St. Paul Railway Co.

212 N.W. 273, 192 Wis. 231, 1927 Wisc. LEXIS 149

• Court: Wisconsin Supreme Court
• Decided: February 8, 1927
• Status: Published

Opinions

Stevens, J.

The case presents the question whether appellant was a licensee or a frequenter, or whether he was a trespasser upon the-defendant’s right of way. If he was a trespasser, the railway company was under no obligation to make its right of way a safe place for employment under ch. 101 of the Statutes, even if it could be held that a railway right of way distant from any station is at all times a place of employment as defined in these statutes.

Sub. (2) of sec. 192.49 of the Statutes provides:

“It shall be unlawful for any person other than a licensee, or authorized newspaper reporters or those connected with or employed upon the railroad, to walk, loiter or be upon or along the track or tracks of any railroad in this state.”

This statute expresses a clear legislative intent to prohibit the general public from traveling upon a railway right of way. The purpose of this statute was to curtail the appalling loss of life that results from the use of railway tracks by pedestrians. The statute has for its purpose not only the protection of the lives of pedestrians, but also the lives of those who operate railway trains and of those who are passengers on such trains. European countries conserve human life by keeping the public off the rights of way of railways. America, by the abolition of grade crossings and the prohibition of the use of railway rights of way by pedestrians, is endeavoring to profit by the example of European nations. This law should be construed so as to permit it to accomplish its benevolent purpose, rather than to give it a construction that will lead to the sacrifice of human life, even if it may seem to work a hardship to the individual pedestrian who is injured while upon the railway right of way.

The first expression of the legislative will upon this subject is found in sec. 31 of ch. 119, Laws of 1872, which provided :

“It shall not be lawful for any person other than those connected with or employed upon the railroad, to walk along the track or tracks of any railroad, except when the same shall be laid along public roads or streets.”

Appellant was upon the right of way at the time of injury solely for his own convenience. He came within none of the exceptions of sub. (2) of sec. 192.49 of the Statutes. Unless he was a licensee, he was on the right of way in violation of the express prohibition of the legislature and was subject to the punishment prescribed by this section. If appellant was lawfully upon the right of way at the time of the injury, it was because he and others had violated this statute so often and so persistently that it must be assumed that the railway company tacitly licensed such use of its right of way by pedestrians. Were the question now presented for the first time, it might be difficult to conclude that one can acquire the right to violate a law by being guilty of repeated violations of that law. As phrased by Chief Justice White, it is difficult to conclude that repeated disobedience of a legislative act “would become the generating source of a discretionary power to make the disobedience of law lawful.” Daniels v. Wagner, 237 U. S. 547, 559, 35 Sup. Ct. 740.

But the rule has been established by the décisions of this court that continuous and long-continued use of a well-defined path across or along a railway right of way at or near depot grounds may be the basis of an implied license to pass across or along railway property. But the application of the rule as to licensees ought not to be extended so as to nullify the public policy of the state as declared by the legislature for the manifest purpose of protecting human life.

The Wisconsin cases in which pedestrians upon the right of way have been held to be licensees are those where it was established that large numbers of persons have for long periods of time traveled along well-defined paths upon the right of way. The decisions of this court clearly establish the rule that a license is not to be implied from such use as was made of this right of way by the children of two families going to and from school and by a teacher and by other occasional pedestrians who did not travel along any well-defined path. “The usé of the right of way for the purpose of passage by individuals occasionally, even with the knowl-édge of the company, should not be construed into an acquiescence in such use by the company, simply because it did not expressly object to such use, or otherwise warn people from making such use of its right 'of way.” Davis v. C. & N. W. R. Co. 58 Wis. 646, 653, 17 N. W. 406. “The travel must be confined to a certain and well-defined way; it must have been so continuous, frequent, and well established as to raise an inference of acquiescence in such use on the part of the company.” Mason v. C., St. P., M. & O. R. Co. 89 Wis. 151, 156, 61 N. W. 300.

The later cases evidence no intent to so extend the application of the rule as to legalize the presence of trespassers upon railway rights of way. A review of all the cases in which it has been held that a pedestrian on a right of way was a licensee shows that “the injury occurred at the station • or on the depot grounds or yard, where parties would naturally resort and cross over the same, and where the agents and servants of the company could exercise a proper degree of care and watchfulness under the circumstances; but we have not met with any case, in which the point was necessary to the decision, where it has been held that a license can be implied from such acts of frequent use by pedestrians or wayfarers of the main track or bridges or trestles distant from such places as a pathway for travel.” Anderson v. C., St. P., M. & O. R. Co. 87 Wis. 195, 205, 58 N. W. 79. No Wisconsin cases were cited and we have found none decided since the Anderson Case in which a pedestrian has been held to be a licensee upon a railway right of way which is as far removed from either depot grounds or switch tracks as was the place where appellant was injured. At the place of injury there were no tracks except the two parallel tracks'of the main line. The place of injury was not frequented by employees of the company except at such times as they came to inspect or repair and maintain the tracks or the signal system. The use of the right of way by occasional pedestrians at such a place “is unlike the habitual use by pedestrians of particular paths, walks, and drives at railway stations and on'depot grounds and yards which are unfenced and open to the public, and where they may be readily observed by agents of the company.” Schug v. C., M. & St. P. R. Co. 102 Wis. 515, 521, 78 N. W. 1090.

The appellant was a trespasser, not a licensee. It follows that ch. 101 of the Statutes, which provides that it shall be the duty of the employer to furnish a safe place of employment, imposed no duty on the defendant in this case. The duty of the railway company to trespassers on its right of way is well defined. “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 from 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.” Anderson v. C., St. P., M. & O. R. Co. 87 Wis. 195, 204, 58 N. W. 79. The defendant company did not discover appellant in any position of danger or peril and was never placed in a position where either under the rules of the common law or under joint orders of the railroad and industrial commissions it failed to perform any duty which it owed to one who was a trespasser upon its right of way.

It follows that the judgment must be affirmed and that it is not necessary to consider any of the other questions presented upon the argument.

By the Court. — Judgment affirmed.

The following opinion was filed March 8, 1927: