Swartwood's Gdn., &c., v. L. & N. R. R. Co.

protection against trespassing upon the railroad tracks; that children and others do so in spite of the well-known dangers of the practice. The Legislature has not taken action to require the railroad companies or the cities to maintain barriers against such trespassers. The habit of such trespassing, including, perhaps, the childish tendency and practice of clambering onto the moving cars to get a short free ride, is well known also to everybody, including, of course, the railroad people. If the operators of the train know of the actual presence of such trespassers, for such they are, they are required by the humaneness of the law to not injure them if with the means at their command they can avoid doing so. Nor will the inconvenience and annoyance entailed be counted. The courts have never gone further than that. The Legislature may, but it has not. Any other rule, particularly the one contended for by appellant, would require practically that such railroads should police all their lines and vehicles in such cities and towns in anticipation of the dangers to thoughtless and heedless persons. Because of their inexperience and childish instincts, infants of tender years are not always held to the same strict accountability as adults in such matters. The latter are charged with their own negligence in wilfully going into such perilous places without right to do so; but, even if they were not negligent, as for example if they were insane, the rule would not be different. So the rule is not based entirely upon the negligence or even wrong of the so-called trespasser. Rather the reason a recovery is denied is because the railroad company has not been legally negligent of any duty it owed to such person. Without legal duty there cannot be actionable negligence. The duty is not owing because, as such per

Swartwood's Gdn., &c., v. L. & N. R. R. Co.

son had not the right to be at the place, his presence need not be expected, and need not therefore be provided against. It is true it is known that such trespasses are probable; but they are sporadic. The railroads are required to serve the public by running their trains over their tracks. They are held to a rather strict accountability in many matters connected therewith. To require this additional duty would be to put railroad operations beneath the rights of trespassers upon the railway tracks. It would be hard, if not impracticable, to draw a line between wilful trespassers and those of other degrees, or between those who trespass in towns and those who trespass in the country. Both quarters are alike subject to the practice, though with varying frequency. Hence no distinction is recognized as existing with respect to such.

The courts have gone as far as seems allowable within the principles of the common law, in applying the doctrine of liability to technical trespassers; where, for example, the public uses a railroad as a street or passway for such time and with such frequency as to show with reasonable certainty that they are present at all times, the railroad company by its acquiescence seemingly assenting to and inviting such use, the traveler is not deemed a trespasser, or, if he is, the company is charged with notice of the fact of his presence. It may be thought harsh and arbitrary to draw a line between such and children who are allowed to habitually trespass on the moving cars. But the line must of necessity be drawn somewhere. And, where the gradation becomes shadowy and indistinct, it may appear that the line is drawn arbitrarily. But it is not so in this instance. A very practical differentiation exists logically. The public-which, of course, includes everybody-may

Swartwood's Gdn., &c., v. L. & N. R. R. Co.

obtain an easement in land by prescription. The particular land thereby is dedicated to the public use. As railroads do run upon streets of cities, it is not inconsistent that streets may be opened up along the railroad track. If the railroad, in fact, so dedicates its track in a city or allows it to be so used for such a length of time as that the public right attaches as if there had been such dedication, then the public are there as a matter of right; or, at least, the railroad, because of its acquiescence and seeming invitation, will not be heard to deny it Its duty in that event is to maintain a lookout for such persons, knowing they are probably present; and to take precautions against injuring them. But this rule of presumptive dedication does not apply as to sparsely settled sections, or where the use is comparatively infrequent, and without semblance of an assertion of a public right. These rules obtain without any respect to the ages or mental conditions of those using such ways. Now as to the cars, there is no such thing as the public's acquiring a right to use them by prescription. There is no precedent for such claim, and no principle in law analogous to it. All who venture unbidden by the company and unknown to it upon its trains do so at their own peril, as they can have no right, and the company therefore owes them no duty, in such case. This rule also applies from the very necessity of the matter, without respect to the age or condition of the trespasser, for the court must deal with the question first of legal duty, not compassionable innocence.

Counsel for appellant cites and relies upon Louisville & Nashville Railroad Company v. Popp, 96 Ky. 103, 27 S. W. 992, 16 Ky. Law Rep. 369; Bransom's Adm'r v. Labrot, 81 Ky. 638, 5 Ky. Law Rep. 827, 50 Am. Rep. 193, and a line of cases known as the

Swartwood's Gdn., &c., v. L. & N. R. R. Co.

"Turntable Cases." In L. & N. R. R. Co. v. Popp, supra. the injured child was known to be on the car by the trainmen when they bumped other cars against it so violently and negligently as to throw the plaintiff off and hurt him. The principle on which the recovery was allowed in that case is one firmly fixed, namely, the known presence of a trespasser imposes the duty on the trainmen to use care not to injure him. They have the right to eject him because he is a trespasser, but not to kill or maim him. Bransom v. Labrot, supra, rests on the same principle as the turntable cases, namely, the negligent leaving upon one's lands unguarded dangerous contrivances attractive to children, whereby they are lured onto the real property of the negligent owner and sustain injury. But that principle has not a place here. The cars were not left in unguarded lots, but were being used in the only way the conditions permitted them to be used at the time and place.

So far we have discussed this case omitting to mention another allegation of the petition which appellant seems to place some stress upon supporting a right to recover in this action; that is, it is alleged that on an open lot owned by defendants adjacent to their track where the injury occurred defendants had placed a pile of sand and left it unguarded, which was attractive to children, and did attract them and the plaintiff to that point to play; that whilst they were there the train came along, when plaintiff left the sand pile, and attempted to board the cars. The allegation as to the sand is wholly redundant. The sand had no connection with the injury, and was not a proximate cause of it. If the plaintiff had been injured by the sand, or by rolling or slipping from it under the train,

Adams v. Commonwealth.

and thereby got hurt, a different question would be. presented. But such was not the fact

We are of the opinion that the ruling on the demurrer was without error; and the judgment must be affirmed.


Adams v. Commonwealth

Appeal from Rockcastle Circuit Court.

M. L. JARVIS, Circuit Judge.

Defendant convicted of voluntary manslaughter and appeals Affirmed.

1. Homicide-Evidence-Sufficiency-Manslaughter.-In a prosecution for murder, evidence held sufficient to sustain a judgment of conviction of voluntary manslaughter. 2 District

and Prosecuting Attorneys-Substitutes-Commonwealth's Attorney Pro Tem.-Statutes.-Ky. Stas. 1903, section 120, provides that, in the absence of the commonwealth's attorney, the circuit judge may appoint a suitable attorney to act, but shall not appoint such attorney to act in his place, unless he and the county attorney are both absent, or of kin to, or of counsel for, accused, except in felony cases. Section 127 provides that the county attorney shall attend to the prosecution of cases in his county in which the commonwealth or county is interested, and also attend the circuit courts held in the county, and aid the commonwealth's attorney in all prosecutions, and, in the latter's absence, shall attend to the commonwealth's business in said courts. In a homicide case the regular commonwealth's attorney was disqualified to prosecute by reason of his employment by accused before his election to defend accused for the same

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