Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/376

 § 372.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. VII. § 372. Undoubted^, as we have seen, there is authority for the proposition that a railroad company owes no duty to tres- passers, except not wantonly to injure them. 1 But the weight of authority seems to be in favor of the rule stated by the Federal Supreme Court as follows : " While a railway company is not bound to the same degree of care in regard to mere strangers who are unlawfully upon its premises that it owes to passengers conveyed by it, it is not exempt from responsibility to such strangers for injuries arising from its negligence or from its tortious acts." 2 Accordingly, it would seem that a trespasser who is not guilty of contributory negligence should be allowed to recover if his injuries are caused by the negligence of the servants of the corporation. But there must have been negligence imput- able to the corporation, for if no duty on its part is violated, there is no cause of action against it. And the circumstances are to be considered. Thus, to run a train rapidly and without signals across a highway crossing is in itself negligent ; but not so to run the train at full speed and without continual whistling along the ordinary track. 3 Except when crossing a highway, or passing through the streets of a town, the engineer of a train has no reason to expect persons on the track. Moreover, to be walking on a railroad track may itself constitute contributory negligence, barring recovery if the person is an adult. 4 If, on the other hand, the person injured is a child, and its parents are P. Ry. Co., 21 Minn. 207; Texas and St. L. Ry. v. Orr, 46 Ark. 182. But see Pittsburgh, Ft. W. & C. Ry. Co. v. Bingham, 29 O. St. 364. 1 See, also, Morrissey v. Eastern R. R. Co., 126 Mass. 377; McAlpin v. Powell, 55 How. Pr. (N. Y.) 163; Hughes v. Macfie, 2 H. & C. 744; Mangan v. Atterton, 4 H. & C. 388; Brague v. No. Cent. R'y Co., 192 Pa. St. 242; Alabama Gt. So. R'y Co. v. Moorer, 116 Ala. 642. 2 Railroad Co. v. Stout, 17 Wall. 657, 661; Benton v. C. R. I. and P. R. R. Co., 55 Iowa, 496 ; Daley v. Norwich, etc., Railroad Co., 26 Conn. 591; Whirley v. Whiteman, 1 Head. 356 610; Keffe v. Milwaukee, etc., Rail- road Co., 21 Minn. 207; Koons v. St. Louis, etc., Railroad Co., 65 Mo. 592; T. and P. R'y Co. v. O'Dunnell, 58 Tex. 27; Lynch v. Nurden, 1 Q. B. 29; Williams v. Great Western Railway Co., L. R. 9 Exch. 157. Compare Opsahl v. Judd, 30 Minn. 126; Gradin v. St. Paul, etc., R'y Co., 30 Minn. 217; Boyden ». Fitchburg R. R. Co., 70 W. 125; Mitchell v. B. & M. R. R. Co., 68 N. H. 96. 8 See St. Louis, etc., R'y Co. t>. Payne, 29 Kans. 166. v. State, 54 Md. 648; Northern Cen- tral R'y Co. v. State, ib. 113.
 * Baltimore and Potomac R. R. Co.