Moore v. Kurn

HUXMAN; Circuit Judge

(dissenting)'.

I find myself unable to agree with my associates in the conclusion which they have reached in this case.

The deceased was a trespasser upon the right of way of the railroad company. The railroad company owed deceased no duty to use ordinary care to discover him on its tracks or to discover his dangerous position. It was under no obligation to defendant, a trespasser, other than not to injure him wilfully or intentionally when his peril came to the notice of the company. The duty of a railroad company not to injure a trespasser upon its right of way begins…