NEWMAN, District Judge
(after stating the facts). The exceptions in this case raise the important question as to whether the court erred in instructing the jury in this case as follows:
“Therefore, the main questions for you to decide are whether the railroad was at fault in the manner in which it operated its train on the occasion in question; whether (hat fault—if there was fault-—was the proximate cause of the injury; whether the plaintiff contributed by his negligence to his injury ; and whether, even if the plaintiff was himself at fault and negligent, and thereby helped to bring about the injury, the defendant railroad company could by the exorcise of due care and diligence have avoided the accident. If it could llave done so and did not do it, it would bo liable.”
And in refusing to give at the request of defendant’s counsel the following:
“Under the circumstances of this ease, the plaintiff being a trespasser upon the tracks of the railroad company, it owed him no dirty except to exercise proper care to endeavor to save him from injury after his presence on the track and his peril were discovered.”
And also the defendant’s request as follows:
“Tlie burden is on the plaintiff to prove to you by a preponderance of credible evidence three tilings, to wit: (1) That he was discovered by tbe defendant’s employes in a position of peril; (2) that he was discovered in time for the injury to have been averted by the exercise of reasonable care on the part of the defendant’s employes; and (31 that defendant’s said employes failed to use reasonable care and diligence to avoid the injury after discovering the plaintiff’s peril, notwithstanding that they liad time and opportunity to use such care. Failing to prove to your satisfaction any one of these three things, the plaintiff is not entitled to recover in this case.”
Other requests along the same line were made raising the question stated above as to whether the defendant company owed the plaintiff any duty except to do what it could to avoid injury after his peril was discovered.
The learned judge trying this case in the Circuit Court based his ruling, which resulted in his charge as given above, and in refusing to charge as stated, on the case of Turnbull v. New Orleans & C. R. Co., 120 F. 783, 57 C. C. A. 151. Decisions of courts must always be taken, to some extent at least, in connection with the facts in the case decided. The Turnbull Case was one of injury to a child eight years of age, at a public crossing; and that there is a marked difference between that case and the instant case, where a man of mature years ¡was walking along the track of a railroad company away from a crossing, is apparent. In the Turnbull Case, in the opinion by Circuit Judge McCormick, this language was used :
“After a careful examination of a number of recent decisions of the courts of highest authority and of the most approved text writers, we conclude that the requested charge was not too broad, and was not misleading, and that the excerpt from the trial judge’s general charge does not fully state the true rule, but omits to instruct the jury that, if the motoneer ought to have discovered the danger of the child in time to save it, he could recover, notwithstanding his own contributory negligence.”
[424]*424Undoubtedly, if a motoneer, operating a street car approaching, a public crossing of a street, ought to have discovered the peril of a child eight years of age on the crossing in time to save it, the company would be liable. Approaching a street crossing where people at any time are liable to be and almost certainly are, is an entirely different thing from running a railroad train along the track in the country away from crossings, and where the engineer in charge of and operating the train has no reason to expect the presence of persons on the track. In the first instance, the person is where he may lawfully be; in the second instance, he is clearly and under all the authorities a trespasser. We think the rule is too well settled in the courts of the United States to be now questioned that the only duty owing by a railroad company to a trespasser upon its tracks away from a public crossing is, at the most, to do all it reasonably, pan to prevent injury to such trespasser after discovering his peril. Some of the cases hold that the only duty is that of ordinary care'to prevent injury; but the most extreme view that can be taken of the adjudged cases is that the employes of a railroad company should do everything they reasonably can to prevent injury after discovering the trespasser’s presence on the track.
In the case of Sheehan v. St. Paul, etc., Ry. Co., 76 Fed. 201, 22 C. C. A. 121, in the opinion by Judge Seaman, the question here involved is discussed in this way:
“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 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, Thompson, Negligence, 448; Railroad Co. v. St. John, 5 Sneed (Tenn.) 524, 73 Am. Dec. 149; 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 engine and cars. * * * The obligation of the company and its operatives is not, then, pre-existing, but 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 to avert injury to others from means which can be controlled.”
To the same effect are Singleton v. Felton, 101 Fed. 526, 42 C. C. A. 57; L. & N. R. Co. v. McClish, 115 Fed. 268, 53 C. C. A. 60; Cleveland, etc., R. Co. v. Tartt, 64 Fed. 823, 12 C. C. A. 618; Id., 99 Fed. 369, 39 C. C. A. 568, 49 L. R. A. 98. In St. Louis, etc., Ry. Co. v. Bennett, 69 Fed. 525, 16 C. C. A. 300, the rule on the subject is stated in the following language:
“The only duty which a railroad company owes to those who, without its knowledge or consent, enter upon its tracks, not at a crossing or other like public place, is not wantonly and unnecessarily to inflict injury upon them after its employés have discovered them. It owes them no duty to keep a lookout for them before they are discovered, because they are unlawfully up[425]*425on tho tracks, and the railroad company is not required to watch for violations of the law.”
Mention has been made here of the case of Inland Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 11 Sup. Ct.
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NEWMAN, District Judge
(after stating the facts). The exceptions in this case raise the important question as to whether the court erred in instructing the jury in this case as follows:
“Therefore, the main questions for you to decide are whether the railroad was at fault in the manner in which it operated its train on the occasion in question; whether (hat fault—if there was fault-—was the proximate cause of the injury; whether the plaintiff contributed by his negligence to his injury ; and whether, even if the plaintiff was himself at fault and negligent, and thereby helped to bring about the injury, the defendant railroad company could by the exorcise of due care and diligence have avoided the accident. If it could llave done so and did not do it, it would bo liable.”
And in refusing to give at the request of defendant’s counsel the following:
“Under the circumstances of this ease, the plaintiff being a trespasser upon the tracks of the railroad company, it owed him no dirty except to exercise proper care to endeavor to save him from injury after his presence on the track and his peril were discovered.”
And also the defendant’s request as follows:
“Tlie burden is on the plaintiff to prove to you by a preponderance of credible evidence three tilings, to wit: (1) That he was discovered by tbe defendant’s employes in a position of peril; (2) that he was discovered in time for the injury to have been averted by the exercise of reasonable care on the part of the defendant’s employes; and (31 that defendant’s said employes failed to use reasonable care and diligence to avoid the injury after discovering the plaintiff’s peril, notwithstanding that they liad time and opportunity to use such care. Failing to prove to your satisfaction any one of these three things, the plaintiff is not entitled to recover in this case.”
Other requests along the same line were made raising the question stated above as to whether the defendant company owed the plaintiff any duty except to do what it could to avoid injury after his peril was discovered.
The learned judge trying this case in the Circuit Court based his ruling, which resulted in his charge as given above, and in refusing to charge as stated, on the case of Turnbull v. New Orleans & C. R. Co., 120 F. 783, 57 C. C. A. 151. Decisions of courts must always be taken, to some extent at least, in connection with the facts in the case decided. The Turnbull Case was one of injury to a child eight years of age, at a public crossing; and that there is a marked difference between that case and the instant case, where a man of mature years ¡was walking along the track of a railroad company away from a crossing, is apparent. In the Turnbull Case, in the opinion by Circuit Judge McCormick, this language was used :
“After a careful examination of a number of recent decisions of the courts of highest authority and of the most approved text writers, we conclude that the requested charge was not too broad, and was not misleading, and that the excerpt from the trial judge’s general charge does not fully state the true rule, but omits to instruct the jury that, if the motoneer ought to have discovered the danger of the child in time to save it, he could recover, notwithstanding his own contributory negligence.”
[424]*424Undoubtedly, if a motoneer, operating a street car approaching, a public crossing of a street, ought to have discovered the peril of a child eight years of age on the crossing in time to save it, the company would be liable. Approaching a street crossing where people at any time are liable to be and almost certainly are, is an entirely different thing from running a railroad train along the track in the country away from crossings, and where the engineer in charge of and operating the train has no reason to expect the presence of persons on the track. In the first instance, the person is where he may lawfully be; in the second instance, he is clearly and under all the authorities a trespasser. We think the rule is too well settled in the courts of the United States to be now questioned that the only duty owing by a railroad company to a trespasser upon its tracks away from a public crossing is, at the most, to do all it reasonably, pan to prevent injury to such trespasser after discovering his peril. Some of the cases hold that the only duty is that of ordinary care'to prevent injury; but the most extreme view that can be taken of the adjudged cases is that the employes of a railroad company should do everything they reasonably can to prevent injury after discovering the trespasser’s presence on the track.
In the case of Sheehan v. St. Paul, etc., Ry. Co., 76 Fed. 201, 22 C. C. A. 121, in the opinion by Judge Seaman, the question here involved is discussed in this way:
“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 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, Thompson, Negligence, 448; Railroad Co. v. St. John, 5 Sneed (Tenn.) 524, 73 Am. Dec. 149; 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 engine and cars. * * * The obligation of the company and its operatives is not, then, pre-existing, but 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 to avert injury to others from means which can be controlled.”
To the same effect are Singleton v. Felton, 101 Fed. 526, 42 C. C. A. 57; L. & N. R. Co. v. McClish, 115 Fed. 268, 53 C. C. A. 60; Cleveland, etc., R. Co. v. Tartt, 64 Fed. 823, 12 C. C. A. 618; Id., 99 Fed. 369, 39 C. C. A. 568, 49 L. R. A. 98. In St. Louis, etc., Ry. Co. v. Bennett, 69 Fed. 525, 16 C. C. A. 300, the rule on the subject is stated in the following language:
“The only duty which a railroad company owes to those who, without its knowledge or consent, enter upon its tracks, not at a crossing or other like public place, is not wantonly and unnecessarily to inflict injury upon them after its employés have discovered them. It owes them no duty to keep a lookout for them before they are discovered, because they are unlawfully up[425]*425on tho tracks, and the railroad company is not required to watch for violations of the law.”
Mention has been made here of the case of Inland Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 11 Sup. Ct. 653, 35 L. Ed. 370, as announcing a doctrine in line with that held by the trial judge to be applicable in this case. In the Tolson Case, the plaintiff had his foot crushed between the timbers of a wharf by the violent striking of a steamboat against the wharf while touching there to receive freight from him, and the questions of negligence, contributory negligence, and secondary negligence on the part of the defendant arose. That nothing was decided in that case differently from the rule as stated above will'be apparent from an extract from the opinion by Mr. Justice Gray as follows:
“It was argued that this instruction was inapplicable, because there was' no evidence that the defendant knew the peril of tho plaintiff, or had either time or opportunity, by the exercise of any degree of care, t:o guard against it; that if Ills negligence consisted in standing in a dangerous position too near the edge of the wharf, the defendant was not bound to anticipate his remaining in that position; but that his negligence in fact consisted in placing his foot between the flooring and a fender pile, which tlie defendant could not have been aware of or guarded against. It is true that the instruction could not apply, and therefore could not be understood by the jury to apply, to the latter alternative. But upon the question of the plaintiff's position and attitude the evideuce was conflicting; and it was indisputable that the steamboat was approaching the wharf at his call, and for the purpose of receiving freight from his hands, and that her pilot and officers saw him as he waited on tlie wharf. The jury might well be of opinion that while there was some negligence on his part in standing where and ns he did, yet that tho officers of tho boat knew just where and how lie stood, and might have avoided injuring him if they liad used reasonable care to prevent the steamboat from striking the wharf with unusual and unnecessary violence. If such were the' facts, tlie defendant’s negligence was the proximate, direct, and efficient cause of the injury.”
Reference is also made to the case of Railroad Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485, which, was a case of a person injured at a street crossing in the city of Detroit, and that fact distinguishes it clearly from the case now under consideration. The distinction between the case of a person crossing a street railroad or a steam railroad track at a public crossing where the person has a right to be and may be expected to be, and that of a trespasser walking along the tracks of a railroad company where the person has no right to be and cannot be expected to be, cannot, we think, be too strongly emphasized ; for, in the one case he is exercising a lawful right, whether carefully doing so or not, in the other, he is doing what he may not rightfully do, at least, without taking the risk involved.
In some jurisdictions, but not many, it is held that the duty to trespassers is to do all that can reasonably be done to prevent injury after their peril is discovered, or “in the exercise of ordinary and reasonable care it should have been discovered.” Even this rule, if assented to, would have required a modification of the charge of the trial judge.
The charge on the precise point in issue here was “whether, even if the plaintiff was himself at fault and negligent, and thereby helped to bring about the injury, the defendant railroad company could by the exercise of due care and diligence have avoided the accident.” [426]*426This charge omits to state either that the duty arose after the peril of the injured person was discovered or, in the latter view of the law we have referred to, “by the exercise of ordinary care, could have been discovered.” We hold, however, that the correct doctrine is, as supported by overwhelming authority, certainly in the courts of the United States, that the only duty the railroad company owed to the plaintiff in this case, he being- clearly a trespasser, was to do all that reasonable care and prudence would suggest, under the circumstances, to avoid injuring him after his presence on the track and his peril were discovered.
The charge, failing entirely to present this view to the jury, and the trial judge having refused, although specially requested, to present it, we think there was error which requires that the judgment of the Circuit Court should be reversed, and a new trial granted, and it is so ordered.