BURGESS MASON

v.

THE MISSOURI PACIFIC RY. Co.

(Advance Case, Kansas. February, 1882.)

As a general legal proposition, where both parties are guilty of gross negligence, the plaintiff cannot recover damages sustained by the negligence of the defendant.

Where a railway company has constructed a trestle-work or bridge over a street and creek, laid out on the plat of Wyandotte City, and at a place where the street has not been graded or improved, and the trestle-work, with a span of one hundred feet, extends over a stream sixty feet wide, with perpendicular banks from fifteen to twenty feet high, and is thirty feet above the water in the creek, and the water under the trestle-work is from three to six feet deep, and there are no railings to the trestle work or bridge, and no foot planks upon it, and the only way of crossing such trestle-work or bridge is by stepping from tie to tie, and the railway company is constantly using the track on such trestle-work or bridge for the operation of its engines and cars, and a party climbs up and attempts to cross such trestle-work or bridge without the consent of the company, and is injured by being run over with a handcar operated on the track lying on such trestle-work or bridge; Held, in an action for the recovery of damages for such injury, the court commits no error in ruling out the evidence concerning the custom of foot passengers crossing such trestle-work or bridge, after two persons had testified to it without objection.

A railway company has exclusive right to occupy, use and enjoy its railway tracks, trestle-work and bridges, and such exclusive right is absolutely necessary to enable it to properly perform its duties, and any person walking upon a track or bridge, or any part of the same, of a railway track without the consent of the company, is held in law to be there wrongfully, and therefore to be a trespasser; and in case of an injury happening to such person while so trespassing upon it, from the movement or operation of the cars of the company over it, he is without remedy unless it be proved by affirmative evidence that the injuries resulted from negligence so gross as to amount to wantonness.

ACTION brought by Burgess Mason against the Missouri Pacific Ry. Co. for damages sustained by him in the loss of the services of his wife, Emma Mason, and expenses attending her attempted cure, on account of personal injuries received by the wife about the 5th of November, 1879, from the railway company while the latter was walking across the railway bridge over Jersey Creek in the city of Wyandotte. Trial had at the April term of the District Court of Wyandotte County, for 1881. The jury returned a verdict for the defendant company, and with such verdict also the following questions and answers:

1. Was plaintiff's wife chargeable with only slight negligence in crossing defendant's bridge?

Gross negligence:

2. Did she use her utmost efforts to get out of the way of the car, from the time she was notified of its approach?

No.

3. Could she have stepped off the bridge to one side of the way of the car at any point after hearing the alarm till the car struck her?

Yes.

4. Could the section boss, Con. Curtin, and his five associates have checked up the car after seeing her, and before striking her, had they chose to do so?

No.

5. What was the rate of speed per hour the car was running when coming towards plaintiff's wife?

Twelve miles.

6. Was defendant guilty of gross and wanton negligence in running its car over her?

No.

7. Was she run over between Summunderwot Street on the south, and Garrett Street on the north?

Don't know.

8. Did the men on the hand-car exercise ordinary care and prudence to avoid injuring the plaintiff's wife?

Yes.

9. Did the men on the hand-car, after they discovered plaintiff's wife, exercise ordinary care and prudence to avoid injuring her? Yes.

10. Under all the facts and circumstances in this case, did the plaintiff's wife exercise ordinary care and prudence?

No.

11. Was the plaintiff's wife guilty of any negligence in whole or in part, directly contributing to her injuries?

Yes.

12. Under the facts and circumstances of this case, did the plaintiff's wife exercise any care and prudence?

No.

Judgment was rendered for the railway company, and plaintiff brings the case here.

HORTON, C. J.-Several objections are made by the plaintiff to the rulings of the court in rejecting evidence offered at the trial, and several exceptions are taken to the refusal of the court to give the special instructions asked for by plaintiff, as also to several of the instructions given to the jury. In view of the character of the special finding of facts returned by the jury, it is unnecessary

to note only those matters of evidence and those instructions that affect the conduct of plaintiff's wife. The jury found that the wife was chargeable with gross negligence in crossing the railway company's bridge, and unless this or the other similar findings of the jury can be imputed to erroneous rulings of the court, no new trial ought to be granted, as the plaintiff upon such a finding is not entitled to any recovery. Even if we assume that the court erred in refusing to instruct the jury that it was gross and wanton negligence on the part of the defendant to run its cars at a greater speed than four miles an hour within the limits of the city of Wyandotte, in violation of an ordinance of the city prohibiting a greater speed, nevertheless, plaintiff could not be prejudiced thereby, because, if both Emma Mason and the agents and the servants of the defendant were guilty of gross negligence contributing to the injuries complained of, the defendant would be entitled to the general verdict rendered in its favor by the jury, as it is a correct legal proposition that when both parties are guilty of gross negligence, as a general rule-liable it may be to some exceptions-the plaintiff cannot recover. In this case, although the action is in the name of the husband, yet, if the wife was guilty of gross negligence, the husband would not be entitled to damages for her injury. Plaintiff complains that the court erred in ruling out evidence concerning the custom of foot passengers crossing the bridge over Jersey Creek, where his wife was injured, after two witnesses had testified thereto without objection. Unless the evidence was competent, the admission of like evidence in the first instance is no bar to the exclusion of other and further evidence of that character. Because some incompetent evidence is admitted without objection, other incompetent evidence is not thereby competent, if offered to prove the same fact. It appears from the record that the plaintiff, about the time she received her injuries, was going to her home. Instead of going upon Third Street in the city, which was graded and sidewalked, she attempted to reach her home by a nearer route; in taking this course it was necessary to cross Jersey Creek a few rods above where it empties into the Missouri River. The only way of crossing this stream at this place was by climbing upon the embankment of defendant's railway, and passing from this upon the trestlework of the road over Jersey Creek, by stepping from tie to tie. This the wife attempted to do. At the place where the trestle is located the streets, as laid out on the plat of Wyandotte city, are unused for general travel, and at such place the streets have not been graded or improved. The bridge over the creek is iron, and has over one hundred foot span. It is thirty feet from the top of the trestle to the water in the creek, and the water under the trestle is from three to six feet deep. The embankment at the south end of the bridge is four or five feet at fill, and fifteen feet at creek; and on north side eight to ten feet at fill, and twenty feet

at creek. Jersey Creek is about sixty feet wide at the bridge, and the banks on each side are perpendicular, and from fifteen to twenty feet high. There are no railings to the bridge, and no foot planks to walk upon. Considering the character of the structure erected, and the use to which it is applied by the defendant, we do not think there was any error in refusing to admit further evidence concerning foot passengers crossing it. It cannot be well said that such trestle-work and bridge, as constructed, were either in law or in fact a public street.

upon

As there was no attempt to show that either the injured party or any other person was invited by the company to cross or travel the structure over the creek, or that the injured party was upon the structure with the consent of the company, the fact that other parties had crossed upon it did not make it less dangerous or less negligent for the wife of the plaintiff to attempt to do so. This is not a case where the legal right of the railway company and that of the public to use such trestle-work was about equal. The embankment and trestle-work are so much elevated above the street, and are so erected for the purpose of operating thereon cars and engines only, as to apparently forbid foot passengers crossing the creek at this place; therefore, we do not think that the railway company was bound to operate its cars with reference to footmen undertaking the peril of attempting to step from tie to tie in crossing the long span over the stream, especially in view of the frequent running of the cars on the track on such trestle-work. Counsel for plaintiff contends that as the bridge lay wholly within two of the streets of the city of Wyandotte, called Front Street and Wawas Street, which cross each other at the point where the bridge crosses the creek, and as a street belongs to the public from the centre of the earth to the heavens above, persons had the right to climb up the embankment and to use the trestle-work as a public street of the city. Not so. The embankment and trestle-work were the property of the railway company. It was used for the purposes of the company in operating its cars and trains, and so built and constructed as to render any travel thereon perilous, even without the operation of cars upon the track. Whether the authorities consented to the construction of such embankment and trestle-work, is immaterial at this time. The railway company was in full occupation of it, and the public had no right to cross over such a dangerous structure, and knowing it to be unsafe for travel, to claim exemption from all negligence on their part, and charge the railway company with the fruits of their own imprudence.

This leads us to the consideration of the instruction given by the court, to the effect that if the plaintiff's wife was injured at a point not on the surface of a public highway or travelled street, but upon the trestle or embankment of the defendant's road-bed, then she had no right to be there, and was a trespasser, and if injured

while trespassing by the act or negligence of the defendant's employees, before the defendant could be held legally responsible for such negligence of its employees, the negligence must be so gross as to amount to wantonness. Whenever a party infringes upon the rights of others, this negligence, or this wrong doing, as the case may be, absolves others from using ordinary care and diligence towards such party. In brief, they are under no legal or moral obligation to be cautious and circumspect towards one who infringes upon their rights. U. P. Ry. Co. v. Rollins, 5 Kan. 167. A railway company has the exclusive right to occupy, use and enjoy its railway tracks, bridges and trestle-work, and such exclusive right is absolutely necessary to enable such a company to properly perform its duties; and any person going upon or using or occupying the track or bridge of a railway company without the consent of the company, is held in law to be there wrongfully, and therefore to be a trespasser. Now, as the point where the plaintiff's wife was injured was not on the surface of a public highway or travelled street, but upon the trestle-work or embankment of the defendant's road-bed, for all the purposes of this case, the railway company had the exclusive right to occupy, use and enjoy such trestle-work and embankment; therefore, the instruction that the railway company was liable only for such negligence so gross as to amount to wantonness was a correct declaration of the law to the jury. The plaintiff's wife climbed up the embankment and attempted to cross the trestle-work or bridge without the consent of the company, and at her own peril, and the husband can recover only for injuries done to her for such negligence of the employees of the company as was so gross as to amount to wantonness. The judgment of the district court will be affirmed.

All the justices concurring.

See note, p. 17.

LOUISVILLE AND NASHVILLE R. R. Co.

v.

COOPER'S Admr.

(Advance Case, Kentucky. February 28, 1882.)

In an action against a railroad company for running over and killing the plaintiff's intestate, it appeared that the deceased was a full grown man, but was deaf and dumb, and that at the time of the accident he was walking on the track of the company in the same direction as the train that killed him. The evidence was conflicting as to whether any whistle or bell was sounded