Union Pacific Ry. Co. v. McDonald
152 U.S. 262 (1894)

Annotate this Case

U.S. Supreme Court

Union Pacific Ry. Co. v. McDonald, 152 U.S. 262 (1894)

Union Pacific Railway Company v. McDonald

No. 224

Argued January 23, 1894

Decided March b, 1894

152 U.S. 262




A railway company which operated a coal mine near one of its stations in Colorado was in the habit of depositing the slack on an open lot between the mine and the station in such quantities that the slack took fire and was in a permanent state of combustion. This fact had been well known for a long time to the employs and servants of the company, but no fence was erected about the open lot, and no efforts were made to warn people of the danger. A lad twelve years of age and his mother arrived by train at the station and descended there. Neither had any knowledge of the condition of the slack, which, on its surface, presented no sign of danger. Something having alarmed the boy, he ran towards the slack, fell on and into it, and was badly burned. Suit was brought to recover damages from the railway company for the injuries thus inflicted upon him.


(1) That the company was guilty of negligence in view of the statutory obligation to fence.

(2) That the lad was not a trespasser under the circumstances, and had not been guilty of contributory negligence.

(3) That the case was within the rule that the court may withdraw a case from the jury altogether and direct a verdict when the evidence is undisputed or is of such conclusive character that the court would be compelled to set aside a verdict returned in opposition to it.

The case is stated in the opinion.

MR. JUSTICE HARLAN, after stating the facts in the foregoing language, delivered the opinion of the Court.

The Union Pacific Railroad Company seeks the reversal of the judgment below for the sum of $7,500, the amount assessed against it by the verdict of a jury as compensation to the

Page 152 U. S. 263

defendant in error for personal injuries alleged to have been sustained by him in consequence of the want of due care upon the part of the company in managing and controlling certain premises belonging to it on which the plaintiff received such injuries.

The evidence on behalf of the plaintiff tended to establish the following facts: at the time and before the injuries in question were received, the defendant owned and operated a railroad, immediately on the line of which was the Village of Erie, Colorado, containing about six hundred inhabitants. Within a few hundred feet of its depot at that village, the company operated a coal mine. Between the shaft house of the mine and the depot building were the tracks of the railroad. A narrow, rough, uneven footpath to the coal mine extended from the depot building, over the railroad tracks, and close to a slack pit or trench. In working the mine, the company's agents and employees had deposited along and close by the track, between the shaft house of the coal mine and the depot building, a very large quantity of coal slack, which extended up and down the track. The slack was piled up so as to generate heat, and cause it to take fire underneath by spontaneous combustion, and was not spread out in thin layers upon the surface of the ground. It was in a long trench formed on the east side of the railroad in excavating and throwing up dirt for the track, and the top of which was on a level with the ground around it. The path above referred to was described by a witness as "a little bit above the fire -- sort of rim running around the fire -- about eighteen inches wide."

For a long time prior to the injuries complained of, this slack burned continuously under its surface. A few inches below the surface was a bed of burning coals, extending nearly the whole length of the pit. The surface was a mere covering of ashes, sufficient in depth to conceal from view the fire underneath. Except when there was rain, snow, or wind, no smoke would be emitted from the slack pit, nor would there be any visible indications of the existence of the burning coals under the ashes covering the slack.

Page 152 U. S. 264

The burning portion of the slack, thus concealed and covered by what appeared to be dead ashes, was within two or three hundred yards of the most populous part of the town, and came within a few feet of the platform of the depot building. In 1884, the fire burned within twenty feet of the depot building.

For some time, perhaps as long as two years, before the day on which the plaintiff was injured, the company's agents and officers had knowledge of the existence of this slack pit and of its dangerous condition as above stated. Cattle had been known to stray into it and get burned. This fact was known to the company's agents.

The children of the miners were accustomed to go to the mine just as it suited them. They were allowed to pick up coal and carry it to their homes. A witness, who was a coal miner and had worked on this mine, testified that

"he had frequently -- nearly every day -- seen children play around there, and they were allowed to go around the machinery where the shaft was, and this was allowed during all the years this mine was operated. During the time he worked there, he never heard of any objections to children's coming on the premises or of their being driven off."

Another witness, who had worked in the mine in 1884 and had been acquainted with it before and after that time, and who was asked to state what he knew about strangers -- men and women -- being allowed to go about the mine, said:

"Well, in general, strangers coming to the town, about the first look they take is over to the mine and engine -- they are so near the town -- and, for curiosity, they often walk over. Never heard of anybody -- children or others -- being driven away from the works. The slack pile was covered with ashes, and the fire could not be seen. The path was about eighteen inches wide, and near the level of the trench. It was rough, and slanting down towards the fire."

On cross-examination, this witness stated that

"the pile had been burning in that way for about two or three years, and the path above it could not be easily seen; that, while you would undoubtedly see it, still a person could not follow it clearly, plainly, and easily, and ladies going to the graveyard would avoid it, and did not

Page 152 U. S. 265

want to travel it. When on the path, the heat from the burning slack could be felt only when the wind blew. The defendants used to dump their fine slack in there, from time to time, and burn it, and continued to burn it in that way."

The slack pit had no fence around it, nor was it guarded in any way. There was nothing in its appearance, when the weather was clear, to indicate that there was fire beneath the surface of ashes.

On the 3d of September, 1884, the plaintiff, a lad about twelve years of age, visited Erie with his mother. Neither the mother nor the child had any knowledge of this slack pit. After dinner of that day, in the afternoon, the plaintiff obtained the consent of his mother to visit the coal mine in company with a "trapper" boy of the town with whom he had become acquainted. While at or near the shaft house, his attention was attracted to a man in the act of sending a pair of mules down the shaft. About that time, five or six boys came from the coal pit, having lamps on their hats and dirty faces. One of them yelled, "Let's grease him;" another, "Let's burn him." They started towards the plaintiff, who, becoming frightened, ran away, intending to take the small path that skirted the slack pit -- the only one leading from the mouth of the coal pit or from the shaft house to the depot building and the village. In attempting to pass some persons who happened to be on the bank or near the edge of the slack pit, he slipped and fell into the burning slack, breaking through the covering of ashes. He came very near sinking with his entire body into the bed of fire underneath the ashes, and would have perished instantly if he had not been pulled out by a grown person nearby at the time.

The person who rescued him testified that the day was a nice, calm one; that he (witness) started for his home, and, hearing some one screaming, he saw the boy fall into the burning slack while running from the trappers who had scared him. "These trappers," the witness said,

"were boys down in the mine for the purpose of leading the mules. The boy George McDonald was running in the direction of the path that led to the town. He ran into the fire, and fell onto his hands and

Page 152 U. S. 266

face. He [witness] was standing about four feet off from him, in the footpath. He went in, and pulled him out, and found his hands all burned, skin hanging from the hands and fingers, and was burned in his back and clothes. That he helped carry him to the hotel, the boy not being able to walk. That at the time of the accident there was nothing to indicate that there was any fire there. That a man who had never seen it would walk right in it -- would not know there was any fire. Nothing but brown ashes. Came up within forty feet of the depot. Children used to go around there at all hours of the day, some to get coal, others to bring their father's dinner, and some would go over just to see the place. And this condition of affairs was so allowed or conducted during all the time witness was there. That the path was up and down, and on a slant towards the slack pile. The Jackson, Marfell & Mitchell mines used to throw their slack out, but they used to scatter it so it would not burn."

On cross-examination, the same witness stated that the path was used by the miners in going to and from town to the shaft, and that there was no other path; that when the boy fell into the fire, he was running towards the town.

As the result of the injuries received by him, the plaintiff's hands and arms became weakened, and in part disabled, and his face badly scarred and disfigured. His general health was greatly and permanently impaired. His kidneys became seriously weakened and diseased. He suffered intense pain, and was confined to his bed for a long period of time, disabled in the use of his hands in any way.

At the time the plaintiff was injured there was in force a statute of Colorado, passed May 3, 1877, entitled "An act to compel owners of coal mines to fence their slack piles and abandoned pits." That statute was as follows:

"§ 1. That the owner or operators of coal mines from which fine or slack coal is taken and piled upon the surface of the ground in such quantities as to produce spontaneous combustion shall fence said ground in such manner as to prevent loose cattle or horses from having access to such slack piles."

"§ 2. All owners of lands having abandoned coal pits or shafts on the same of

Page 152 U. S. 267

sufficient depth to endanger the life of cattle, horses, or other stock shall fence or fill said pits or shafts in such a manner as to afford permanent protection to all such stock endangered thereby."

"§ 3. Every person violating sections one (1) and two (2) of this act shall be deemed guilty of a misdemeanor and shall be fined in a sum not less than twenty (20) dollars nor more than one hundred (100) dollars, to be collected as other fines are collected, and shall be further liable to any party injured thereby in the amount of the actual injury sustained."

Gen.Laws Colo. 1877, p. 126,

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