#### Missouri, Kansas & Texas Railway Company v. C. C. Cowles.

Decided April 2, 1902.

1. —Railway Company—License to Use Track for Crossing—Trespasser—Personal Injury—Negligence.

Where there was a license to the public to use any part of a railroad yard for the purpose of crossing the track, this did not warrant a person in going upon the track for another purpose, and where one from curiosity stopped to examine the coupler of a flat ear standing on the track in such yard, and was killed by the moving of the car, he was a trespasser to whom the railway company in the absence of knowledge of his presence there, did not owe the duty of giving warning of the movement of the ear.

2. —Same—Signals at Crossing.

It is usually held that where the statute does not specifically name the class of persons to whom the duty of giving signals at a railroad crossing is owing, it is due only to those who are about to use, are using, or have lately used the crossing, and that no others can recover for injuries resulting from a failure to give the signals.

3. —Same—Contributory Negligence.

See evidence held to show that deceased was guilty of contributory negligence in stopping on the track by a car in a railroad yard.

Appeal from Trinity. Tried below before Hon. J. M. Smither.

*T. S. Miller, Hayne Nelms, S. T. Robb,*and *Marshall Thomas,*for appellant.

*Campbell & McMeans*and *R. E. Erwin,*for appellee.

FLY, Associate Justice.

This is a suit to recover of appellant damages for the death of Pellew Cowles, the husband of appellee. The cause was tried by jury and resulted in a verdict and judgment for appellee in 'the sum of $15,000.

The following charge was given to the jury:

> “If you believe from the evidence that the said Pelew Cowles, while on a track of the International & Great Northern Railroad, was struck, run over and killed by a car on said track, then and there set in motion 'by the backing of a freight train of the defendant Missouri, Kansas & Texas Railway Company of Texas, and if you further believe from the evidence that the defendant company, employe or employes in charge of said train did or omitted to do any one or more of the following acts or things as charged in plaintiffs petition, viz: If they backed a freight train down on said railroad track against cars standing on said track, causing said cars to bump against other cars and against the car which struck, run over, and killed said Pellew Cowles and thereby caused said car to move suddenly and to strike, run over, and kill said Pellew Cowles, and that said train was backed on said track against said car without notice or warning to said Pellew Cowles that said car was about to be moved, or if said employe or employes of defendant in charge of said train failed to keep a reasonable lookout to discover said Cowles and *157warn said Cowles that said car was about to be moved in the direction he was, and if you further believe that such acts or omissions, which you find to have been so done or omitted by defendant company’s employe or employes in charge of said train, were or was the proximate cause of the death of the said Pellew Cowles, and that said employe or employes of defendant company in charge of said train were guilty of negligence as hereinbefore defined and explained, in doing or omitting to do one or more of such acts or things which you so find to have caused said Pellew Cowles’ death, and if you further find from the evidence that said Cowles was not himself guilty of contributory negligence proximately causing or contributing to cause his death; and you further find from the evidence that at the time of the death of said Cowles, the plaintiff, Mrs. C. C. Cowles, was his wife, then plaintiff would be entitled to recover, and you will find for the plaintiff unless you shall find for the defendant on some other point concerning which you have been or may be instructed in this charge; the whole of which you will construe together.”

It was established by the uncontroverted facts that deceased, in company with H. W. Browder, started from the freight depot, which was on the east side of three railway tracks, to cross over to the west side, and on account of a number of freight cars standing on the middle track they did not pass straight across the yard, but went to the end of the line of cars, the last of which was a flat car standing several feet from the wagon crossing, and stopped to examine the coupler on the flat car. While thus engaged and while deceased was in the act of kicking the coupler that had been thrown back by Browder, the flat car was backed against deceased, and ran over and killed him.

If appellant knew that deceased was on the track engaged in working with the coupler, it owed him the duty of warning him of the intention to move the car, but if it did not know that he was on the track, it owed him no duty. It is true that it was in proof that it was customary for pedestrians to use any part of the yard in crossing the track, and whilst such use without protest may have given a license to parties to cross the tracks at any point, and may have devolved on the railway companies, using the tracks, the exercise of care towards such pedestrians, it did not create any duty towards those who were using the track not for the purpose of crossing it, but for the examination of the appliances of cars standing on the track. Deceased was not at a crossing when killed, and was not in the act of crossing the track, but was engaged in gratifying an idle curiosity in regard to an appliance of the flat car. The license to deceased was to use any part of the yard for the purpose of crossing the railroad tracks, and for that purpose alone, and only while using the yard with that object in view did the duty to him exist, that is, incumbent upon a railroad company in case of a license. The license to use the tracks for passage from one part of the town to the other was one that is established by the fact that the public had been making such use of them for a number of years and such use had tacitly been acquiesced in by appellant. It was not shown to be a custom, however, for persons *158in their passage across the tracks to stop-and spend an appreciable- length of time in examining and experimenting with the appliances of cars. In so acting deceased was a trespasser pure and simple, and the evidence failed to establish negligence whether looked at from the standpoint of appellant’s duty or from that of the contributory negligence- of deceased. There is no testimony tending to show that the railroad employes had any knowledge of deceased being upon the track.

In the ease of Kelley v. Railway, 31 Horth western Reporter, 904, it was said by the Supreme Court of Michigan: “The highway crossing is for the purpose of passage from one side of the railroad to the other, and any other use thereof, whether between the. tracks or between the rails, is unwarranted.”

The presence of deceased upon the track,was not because of the fact that any part of the tracks in the yard was used as a passageway, but he was there on other grounds totally disconnected with a passage over the track. As said by the Supreme Court of Ohio in Railway v. Marsh, *52*Lawyers’ Reports Annotated, 142: “His right and the liability would have been the same if the track of the railroad company had never been used as a line of travel, or if the injury had occurred while the boy was going to the switch-stand south of the highway, where the railroad was not used as a line of travel, so far as appears in this ease. The principle is the same as that held in Kelley v. Columbus, 41 Ohio State, 263, where the court says: “If there had been a business room in the building, or upon another part of the lot, which would have been an implied invitation to the public to go there, it still would not help the plaintiff, when he admits that he did not go upon the lot for any such purpose.”

There is some conflict of authority as to who may claim the benefit of statutory signals, but it is usually held that where the statute does not specifically name the class of persons to whom the duty is owing, it is due only to those who are about to use, are using, or have lately used the crossing, and have held that no others could recover' for injuries resulting from a failure to give the signals.

In the case of Harty v. Railway Company, 42 Hew York, 469, the plaintiff was at a place where he was licensed to go, not a great distance from a street crossing, and it was held that statutes requiring signals to be given on approaching crossings had for its sole object the protection of persons traveling upon the highway • at or near the crossing. It was said: “If this company was bound to give these warnings to this man,then every railroad company is bound to do so to every person who may be upon the railroad ahead of a train, although he is not on the track and not in a place of danger.” Other authorities supporting this proposition are cited in note to Elliott on Railroads, section 1158, page 1757. To the same effect is Hoover v. Railway, 61 Texas, 503.

The evidence, we think, presents a clear' case of contributory negligence. The only witness who was in a position to know the circumstances surrounding deceased at the time of the accident testified that he in company with deceased, walked upon the railroad track near the end *159.of a flat car which was attached to a coal car and eight or ten box cars, all of which were standing on a track in the railroad yards, and stopped to examine a coupler on the flat car, at the request of deceased. Both of the men were behind the end of the car, Cowles standing between the rails and Browder with one foot within the rails and the other without. When Cowles was struck he was standing on one foot, in the act of kicking the coupler, and Browder was leaning over toward him, manipulating the coupler. The accident did not occur on the crossing. Browder swore that before stopping he did' not look nor listen- for an approaching train, and did not see deceased do so. He did not know whether any signals were given or not. Mr. Cowles was a life insurance agent and had no business in connection with the couplers on the cars. Browder swore that they were occupied with the coupler one or two minutes before the car moved. The least care or caution would have disclosed the fact that an engine was engaged in moving cars on the track on which deceased and Browder were standing.

Because the evidence does not sustain the verdict the judgment is reversed and the cause remanded.

*Reversed and remanded.*

Writ of error granted and judgment affirmed.