Brague v. Northern Central Railway Co.

• Decision Date: 19 July 1899
• Docket Number: 372
• Citation: Brague v. Northern Central Railway Co., 192 Pa. 242, 43 A. 987 (Pa. 1899)
• Parties: Emory S. Brague, by his next friend, W. M. Brague, Appellant, v. the Northern Central Railway Co
• Court: Pennsylvania Supreme Court

43 A. 987

192 Pa. 242

Emory S. Brague, by his next friend, W. M. Brague, Appellant, v. the Northern Central Railway Co

No. 372

Supreme Court of Pennsylvania

July 19, 1899

Argued March 14, 1899 [Copyrighted Material Omitted]

Appeal, No. 372, Jan. T., 1898, by plaintiff, from order of C.P. Bradford Co., Feb. T., 1897, No. 172, refusing to take off nonsuit. Affirmed.

Trespass to recover damages for personal injuries.

The facts appear by the opinion of the Supreme Court, and by the opinion of ALBRIGHT, P.J., of the 31st judicial district specially presiding, refusing to take off nonsuit, which opinion, omitting the testimony quoted, was as follows:

On March 28, 1885, the plaintiff was injured while he was walking between the tracks of the defendant's railroad at a place called Carpenter's, by being struck by a moving locomotive with a tender attached; as a result of the injury he lost a leg; he was also injured in the back. He was then seven years, seven months and twelve days old. This action for damages was brought to February term, 1897, and was tried in February, 1898. The court was of the opinion at the trial that plaintiff's evidence did not warrant a finding that the negligence of defendant's employees caused the injury, and that it proved that plaintiff was a trespasser; consequently a nonsuit was entered on defendant's motion. . . .

Taking the evidence at its strongest in plaintiff's favor, the facts following could be found: The time in question is March 28, 1885, when plaintiff was seven years, seven months and twelve days old; the place, Carpenter's, in the southeast corner of Tioga county. The course of defendant's railroad is north and south; it is crossed at grade by a highway wagon road; plaintiff's father's house was situated on the east side of the railroad, about thirty rods south of the crossing; on the west side of the railroad, within its right of way, about seven feet outside of the western rail of the tracks and from ten to eighteen feet south from the south side of the highway, was a flow of water out of a pipe, called in this trial the "penstock," formerly, but no longer used by the defendant; plaintiff's family and other dwellers in the neighborhood had for several years obtained water at the penstock without objection by the company; about 6 P.M., still daylight, plaintiff was sent from his home by one of his parents with a pail to fetch water from said penstock; he crossed the railroad at said highway crossing, there being no obstructions, went south on the west side of the railroad to the penstock and filled his pail; he returned, going north on the west side of the railroad to the highway crossing, walked along it on to track; then he found a freight train, coal and flat cars, standing on the main or middle track, headed north, about four cars being still south of the crossing; in order to proceed on his way home and to get around the rear of the train, he turned south and walked between the rails, in the middle of the western track or siding, to a point three or four feet south of the penstock, from fifteen to nineteen feet south from the highway, when he was struck by a locomotive with a tender attached, backing down on the western siding from the north beyond the crossing, at the rate of six miles an hour, and was injured; his injuries resulted in the loss of a leg, and he was also injured in the back; the locomotive with the tender gave no warning by bell or whistle when it approached, nor was any one on the part of the company looking out to see whether any one was at or on the crossing. Plaintiff says that in returning he came back north to the highway crossing. The only other witness who testified on that point, Frank Smith, says that he stepped on the track, right on the track from the penstock, and walked down the track; the freight train was moving north slowly when the locomotive and tender backed over the highway crossing; none of those operating the "pusher" engine saw the plaintiff before he was struck.

It was said by Mr. Justice STRONG in the P. & R.R.R. Co. v. Hummell, 44 Pa. 375, "It is time it should be understood in this state that the use of a railroad track, cutting or embankment is exclusive of the public everywhere, except where a way crosses it." The same doctrine has been reiterated again and again in subsequent cases. In Mulherrin v. D., L. & W.R.R. Co., 81 Pa. 366, it was said: "Except at crossings where the public have a right of way, a man who steps his foot upon a railroad track does so at his peril. The company has not only a right of way, but it is exclusive at all times and for all purposes." Many other cases might be referred to were it necessary. Justice PAXSON in Cauley v. P. & C. Ry. Co., 95 Pa. 398, said: "The company owes no duty to the father of a child of tender years trespassing upon its road nor to the child itself." In Moore v. Pa. R.R. Co., 99 Pa. 301, it was said in the course of the opinion: "The circumstance that the trespasser in this instance was a boy ten years of age cannot affect the application of the rule. The defendant owed him no greater duty than if he had been an adult." "A child between seven and eight years of age may be a trespasser, and subject to the rules of law relating to trespassers. . . . To enable a trespasser to recover for an injury he must do more than show negligence. It must appear there was wanton or intentional injury inflicted on him by the owner:" Gillespie v. McGowan, 100 Pa. 144. See also Gillis v. Pa. R.R. Co., 59 Pa. 129.

Plaintiff's counsel urge that the principles above referred to do not apply to this case. These are the reasons they advance to support their said view: "(1) The defendant had permitted six families, including the family of the plaintiff, to get water at the penstock on its premises, dangerously near the rail of their track, for twelve years. This was equivalent to a license or permission, so that the boy, the plaintiff, only seven years of age, when at the penstock, although on the defendant's track, was not a trespasser. Being on their road he had a right to get off. The water was brought and allowed to run on the defendant's road in such a manner as to be an invitation to those families to get water there. (2) The boy was injured at a crossing. He was in the crossing and stepped out of it because the defendant was occupying it. He was so near the crossing that the employees of the defendant could not have observed the crossing as they should have done without seeing the boy. If they did not see him they were not looking out at the crossing as they should have done. If they did see him, they should have warned him. (3) The boy did not come suddenly upon the track in front of the engine. He was on the railroad when at the penstock. He was in plain view of those on the engine from the time it came in on the side track. Others saw the boy on the track long enough to try to call the attention of the employees on the engine to the danger of running over him. Had there been a signal of warning given upon approaching the crossing the boy, if not actually in the crossing at the time, would have been so near he must have heard it. Had the brakeman been on the rear of the tender, looking out as he should have been when they approached that crossing and penstock, as the engineer said at the time, the boy would not have been injured. (4) The boy was not injured on the main track where the cars ran fast and were dangerous. A child could not be supposed to expect an engine to come on him on the side track. The employees of the company ought to have known that it was grossly dangerous for them to run their engine backward, without a lookout, down the side track where children had been getting water for twelve years. Duty to the public required the defendant to operate its road with great care at the place where the boy was injured, for they should have known that children would not be likely to expect them with their engine running on the side track. (5) The boy, Emory Brague, was not 'walking on the track' in the sense in which the term is used by the courts of this state. He was crossing the track. True, to do so, he was walking down the side track to get around the freight train across the track."

If the penstock had been on, or between the tracks, said first reason would have been valid. The question of license to take water and care for those obtaining water and going to and fro for that purpose would have to be submitted to the jury. Then there probably would have been a path to the fountain visible, but the penstock was seven feet to the west of the westernmost rail. A person getting water at it, while waiting for a vessel to fill, was in no danger of being struck by a passing train. There was no path across the track leading to it, but those getting water there passed up and down on the west side. It has not been shown that those living on the east walked across the railroad at a place other than the highway crossing. It is assumed that plaintiff's counsel do not adopt the version of Frank Smith that the plaintiff stepped at once from the penstock on the track and walked down the track, but that of the plaintiff, who testified in returning he went by way of the crossing. If the former version were accepted, plaintiff would have no case bearing discussion. As to the second reason, plaintiff's estimate of the distance from the crossing to the place he was struck is fifteen to nineteen feet; the other witnesses say the distance was greater, and it seems it was greater. He was not injured in the highway crossing. Those running the pusher were not required to look out for trespassers on the track. It is not alleged that they saw plaintiff on the track and recklessly ran him down. The argument that if the...