Baltimore, &C. R. R. Co. v. Schwindling

• Decision Date: 20 November 1883
• Citation: 101 Pa. 258
• Parties: Baltimore and Ohio Railroad Co. <I>versus</I> Schwindling.
• Court: Pennsylvania Supreme Court

Page 258

101 Pa. 258

Baltimore and Ohio Railroad Co. versus Schwindling.

Supreme Court of Pennsylvania.

October 10, 1882.

November 20, 1883.

October 10th 1882.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

ERROR to the Court of Common Pleas No. 1, of Allegheny county: Of October Term 1882, No. 70.

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Johns McCleave and George Shiras, Jr. (with whom were Henry M. Hoyt, Jr., and Welty McCullough), for the plaintiff in error.—There can be no such thing as negligence without a corresponding breach of duty: Swan v. North British Australasian Co., 31 L. J. R. (N. S.) Exch. 437. Plaintiff not being on the defendant's platform on business or in the capacity of a passenger but simply for his own gratification had no right to any care on the part of the defendant except to refrain from willfully and wantonly injuring him: Gillis v. Pennsylvania R. R. Co., 9 P. F. S. 141; R. R. Co. v. Bingham, 29 Ohio St. 364; Harris v. Stevens, 31 Vt. 90. A mere licensee has no right upon the premises on which he intrudes and there can therefore be no correlative duty: Both v. Smith, 7 H. & N. 745. The doctrine laid down above has been frequently applied: Sweeney v. Old Colony R. R. Co., 10 Allen 372; Hounsell v. Smyth, 7 C. B. N. S. 731; Gautretl v. Egerton, L. R. 2 C. P. 371; Maenmer v. Carroll, 46 Md. 193; Hargreaves v. Deacon, 25 Mich. 1; Harrison v. N. E. R. R. Co., 29 L. T. N. S. Exch. 844; Morrisey v. Eastern Railroad Co., 126 Mass. 377; R. R. Co. v. Goldsmith, 47 Ind. 43; Illinois Central R. R. Co. v. Godfrey, 71 Ill. 500; Hughes v. Macfie, 2 Hurl. & Colt. 747; Phila. & Reading R. R. Co. v. Hummel, 8 Wright 375; Moore v. Pennsylvania R. R. Co., 11 W. N. C. 310; Phila. & Reading R. R. Co. v. Heil, 5 W. N. C. 91; Clark v. Phila. & Reading R. R. Co., 5 W. N. C. 119.

M. Swartzwelder and Frank Thomson, for the defendant in error.—Negligence cannot be imputed to a child of tender years: Raauch v. Lloyd, 7 Cas. 370; Nagle v. Allegheny Valley R. R. Co., 7 Norris 35; Hestonville & M. P. R. R. Co. v. Connell, 7 Norris 524.

It is not conceded that a party is only responsible for willful and wanton negligence to a trespasser, especially when that trespasser is a child of tender years: Lynch v. Nurdin, 41 E. C. L. R. 422; Daley v. Norwich & Worcester R. R. Co., 26 Conn. 591; Phila. & Reading R. R. Co. v. Spearin, 11 Wright 307; Penna. R. R. Co. v. Lewis, 29 P. F. S. 44; Kay v. Penna. R. R. Co., 15 P. F. S. 269.

Duties grow out of circumstances, the authorities tell us, and that which in one case would be an ordinary and proper use of one's rights, may, by a change of circumstances, become negligence and a want of due care: Reeves v. Del. L. & W. R. R Co., 6 Cas. 461; Phila. & Read. R. R. Co. v. Spearen, 11 Wright 305; Smith v. O'Connor, 12 Id. 222; F. & B. Turnpike Co. Phila. & Trenton R. R. Co., 4 P. F. S. 350; Phila. & Reading R. R. Co. v. Troutman, 11 W. N. C. 453; I. C. R. R. Co. v. Harmer, 72 Ill. 349

The question of negligence was properly for the jury: Kay v. Penna. R. R. Co., 15 P. F. S. 269; Goshorn v. Smith, 11 Norris 438; Phila. City Pass. R. R. Co. v. Henrice, 11 Norris 431; Penna. R. R. Co. .v Fortney, 9 Norris 323; Penna. R. R. Co. v. Morgan, 1 Norris 134; McKee v. Bidwell, 24 P. F. S. 223.

Mr. Justice GREEN delivered the opinion of the court, November 20th 1883.

At the time the plaintiff received his injury he was standing on the platform of the defendant, so close to its edge that, according to the theory upon which the case was tried for the plaintiff, he was struck by a slight projection from the side of a passing freight car. He was not a passenger, he had no business of any kind with the defendant or any of its agents or employees, in fact he was a boy about five or six years of age amusing himself, looking at the moving train. He was not invited upon the platform by any agent of the defendant, and he was not engaged in the act of crossing either the track or the platform, at the time of the accident. He was simply loitering upon the edge of the platform with no other purpose or motive than his own personal enjoyment. His elder brother, his principal witness, testified that he told him to come back from where he was standing but he refused to do so. A passing car moving at a very slow rate of speed, not exceeding three or four miles an hour, with an iron step projecting a few inches from the side of the car, (as alleged by the plaintiff, though denied by the defendant) struck him and pulled him from the platform under the wheels of the car so that he was run over and injured. In these circumstances was there any right of recovery? We think clearly not. We held in the case of Gillis v. Pennsylvania R. R. Co., 9 P. F. S. on p. 141, that, "The platform of a railroad company at its station or stopping-place is in no sense a public highway. There is no dedication to public use as such. It is a structure erected expressly for the accommodation of passengers arriving and departing in the train. Being unenclosed, persons are allowed the privilege of walking over it for other purposes but they have no legal right to do so." . . . . "Still even a trespasser on the land of another can maintain an action for a wanton or intentional injury inflicted on him by the owner." Again, on p. 143. "The plaintiff may not have been technically a trespasser. The platform was open; there was a general license to pass over it. But he was where he had no legal right to be. His presence there was in no way connected with the purposes for which the platform was constructed." . . . "As to all such persons to whom they stood in such a relation as required care on their part, they were bound to have the structure strong enough to bear all who could stand on it. As to all others they were liable only for wanton or intentional injury. The plaintiff was on the spot merely to enjoy himself, to gratify his curiosity or to give vent to his patriotic feelings. The defendant had nothing to do with that." Upon the foregoing principles, and upon the authority of many adjudicated cases cited in the opinion, and which it is therefore not necessary to review here, it was held there could be no recovery although the platform was insufficient to bear the weight of the persons who were upon it. It was conceded that there would have been a right to recover if the persons on the platform had been there as passengers or upon business connected with the defendant. In the latter case there would have been a violation of a duty owing by the defendant to the plaintiff. But there was no such duty because of the absence of the relation and hence there was no right of action. The controlling feature of the inquiry in all such cases is, was there a duty to the plaintiff which was violated by the defendant. If there was not there is no legal liability. This was essentially the distinction on which Railroad v. Hummel, 8 Wr. 375, was decided. On p. 379, STRONG, J., said: "Yet a jury cannot hold parties to a higher standard of care than the law requires, and they can not find anything negligence which is less than a failure to discharge a legal duty. If the law declares, as it does, that there is no duty resting upon any person to anticipate wrongful acts in others, and to take precautions against such acts, then the jury cannot say that a failure to take such precautions, is a failure in duty and negligence." . . . . "Blowing the whistle of the locomotive, or making any other signal, was not a duty owed to the persons in the neighborhood, and consequently the fact that the whistle was not blown, nor a signal made, was no evidence of negligence."

It will be perceived that it is entirely immaterial, in solving this question, whether the person injured is an adult or a child.

There is no question of contributory...