Conn v. Pennsylvania R. Co.

• Decision Date: 14 March 1927
• Docket Number: 257,258
• Citation: 288 Pa. 494,136 A. 779
• Parties: Conn et al. v. Pennsylvania Railroad, Appellant
• Court: Pennsylvania Supreme Court

136 A. 779

288 Pa. 494

Conn et al. v. Pennsylvania Railroad, Appellant

Nos. 257, 258

Supreme Court of Pennsylvania

March 14, 1927

Argued January 10, 1927

Appeals, Nos. 257 and 258, Jan. T., 1926, by defendant, from judgment of C.P. No. 4, Phila. Co., June T., 1924, No. 4412 on verdict for plaintiffs, in case of Herbert Conn, by his mother and next friend, Jennie Conn, and Jennie Conn, in her own right, v. Pennsylvania Railroad Company. Reversed.

Trespass for loss of both legs by boy twelve years old. Before AUDENRIED, P.J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff, Herbert Conn, for $35,000, and verdict for Jennie Conn for $5,000 on which judgment was entered for $2,500. Defendant appealed.

Error assigned was, inter alia, refusal of judgments for defendant n.o.v., quoting record.

Judgment reversed and entered for defendant.

John Hampton Barnes, of Barnes, Biddle & Morris, for appellant. -- The crossing must be a specific path: Kay v. R.R., 65 Pa. 269; Phila. & Reading R.R. v. Troutman, 11 W.N.C. 453; Forno v. R.R., 234 Pa. 538; Steele v. Ry., 238 Pa. 295; Kovarik v. R.R., 240 Pa. 533; Piepke v. Ry., 242 Pa. 321; Lodge v. R.R., 243 Pa. 10; Muscarella v. R.R., 265 Pa. 120.

The boys walked along the cinder fill and sleepers between the rails, using, therefore, the right-of-way itself occupied by the tracks as a roadway; and it is our contention that, although the public has a right to step on a right-of-way at a crossing, they cannot walk along a right-of-way on the tracks, and thus turn it into a permissive right of way: Caudell v. R.R., 234 Pa. 392; Kay v. R.R., 65 Pa. 269.

Nonsuits or binding instructions have been entered in cases like the present one where children or adults had no right to use the tracks: P. & R.R.R. v. Hummell, 44 Pa. 375; Hoffman v. R.R., 248 Pa. 62; Bailey v. R.R., 220 Pa. 516.

If recovery is sustained here it will mean that railroads cannot be safe unless they put fences which infants cannot climb or penetrate along their entire right-of-way, and signal continuously: Kaseman v. Boro., 197 Pa. 162; Moore v. R.R., 99 Pa. 301; Hojecki v. R.R., 283 Pa. 444; Leithold v. R.R., 47 Pa.Super. 137.

The playground cases are distinguishable: Counizzarri v. R.R., 248 Pa. 474; Kremposky v. Coal Co., 266 Pa. 568; Francis v. R.R., 247 Pa. 425; O'Leary v. R.R., 248 Pa. 4; Slamovitz v. R.R., 266 Pa. 63; Smith v. Ry., 274 Pa. 97.

W. Horace Hepburn, Jr., with him E. Everett Mather, Jr., for appellee. -- Defendant was liable: Francis v. R.R., 247 Pa. 425; Slamovitz v. R.R., 266 Pa. 63; Kremposky v. Coal Co., 266 Pa. 568; Taylor v. Canal Co., 113 Pa. 162; Smith v. Ry., 274 Pa. 97; O'Leary v. R.R., 248 Pa. 4; Hastings v. R.R., 272 Pa. 212; Toner v. R.R., 263 Pa. 438; Costanza v. Coal Co., 276 Pa. 90; Gawronski v. McAdoo, 266 Pa. 449; Ginocchi v. R.R., 283 Pa. 378.

The first five cases cited above are all cases of ways along railroads, lateral to the railroad.

The contention of appellee is that where railway companies run through public parks where the public is liable to be, they should be responsible if on unfenced ways they fail to ring or whistle and run their trains backwards with no man on the rear end, contrary to their own rules.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE FRAZER:

This action is by a mother and her minor son against the Pennsylvania Railroad Company to recover damages for personal injuries suffered by the latter being struck by a train of cars while the son stood on defendant's right-of-way beneath the Girard Avenue Bridge within the limits of Fairmount Park, in the City of Philadelphia. Counsel for the defendant, after the plaintiffs had closed their case, moved for a nonsuit, which was refused. The jury awarded verdicts for plaintiffs and judgments were entered thereon.

For the consideration of this appeal we have at the start the one question determinative of the case placed before us in the words of the learned trial judge in his charge to the jury. This primal question is, Was there a permissive right of way or crossing over the land and tracks of the defendant company by which the minor reached the spot under the bridge where he received injury? Plaintiffs contend a crossing of the character indicated existed there and that "it extended along and across the said tracks of the defendant, near or through the said bridge, to the knowledge of the defendant." Defendant claims there was no permissive or other crossing at the place designated, and the issue is directly before us in the words of the learned court below, in the charge to the jury, as follows: "If there was nothing else in the case except the fact he was struck at the particular point which the evidence indicates as the scene of the accident, I would have to tell you that he has no claim to recover damages against the defendant. There is evidence, however, on the part of the plaintiffs, upon which counsel relies to persuade you that here the boy was on what we call a permissive way, a permissive crossing of the tracks of the railroad." Further on in his charge the learned judge said: "In other words, you are to say whether it was just something that happened occasionally, and whether the boys were trespassing there, or whether it had happened so frequently that it might be inferred, from the railroad's failure to take measures to keep the boys and other people from using the tunnel as a passageway, that it consented to its use."

As this case rests upon its own peculiar facts, and the main, indeed the only, question to be settled is as to the existence or nonexistence of the permissive way or crossing, we may recite in a few sentences the facts and circumstances of the accident itself, of the existence of which there is no dispute. On a bright Sunday in June, shortly after noon, the plaintiff, then 12 years of age, had gone with other lads upon a large, vacant triangular lot in Fairmount Park which belonged to the City of Philadelphia, and over which defendant had no control whatever. For many years this open field had been a favorite place for sports by boys and young men, large crowds of spectators at times during the summer months, gathered there to witness the games. The lot was triangular in shape and bounded on two sides by tracks of defendant. At the northern end it bordered on Girard Avenue, a thoroughfare, as testified, 100 feet in width. Between the lot and the avenue was a fence and through an opening in which persons gained access to and departed from the park field. The west side of this lot joined the line of the right-of-way of defendant's railroad, with a fence marking the line between the lot and the railroad property, which was three feet in height and its panels composed of posts and three longitudinal iron rods or tubes. From the fence line, beginning at the abutment of the Girard Avenue bridge, the land of defendant company slopes down a distance of about 18 feet to the level of the railroad bed, on which lay four tracks running north and south and passing under the bridge named. The side of the railroad property directly opposite the sloping land was completely blocked by the high solid rear walls of a large brewery building, thus effectually preventing passing from the roadbed on that side, so that persons once on the tracks of defendant's road at this point had but two ways of departure, by going southward on the tracks into Fairmount Park, or by going northwardly under the Girard Avenue bridge, the distance between these two points being about 550 feet.

While arranging for a game on the field mentioned, plaintiff and his comrades were driven from the lot by a "gang" of older boys, a disturbance, as the evidence shows, of not infrequent occurrence. In his flight, plaintiff, followed by other boys, fled over or under the fence marking the line between the playfield and the railroad property, ran down the slope at the south side of the Girard Avenue bridge, upon and along the railroad tracks, following them longitudinally as they extended beneath the bridge. Apparently, as he ran beneath that structure, plaintiff went upon the narrow space of land between the west wall of the bridge and the near track. As he was approaching the north side of the bridge where he intended to emerge, he was struck and injured by a train of freight cars, running backward, which suddenly rounded a sharp curve near the north side of the bridge. It was charged by plaintiff and so testified to by witnesses that no warning of the approaching train was given either by bell or whistle, that no person was on guard at the end of the train, and that no warning signs were displayed along the tracks. There was no denial on the part of the defendant company of that evidence. The engineer testified he had not seen plaintiff on the track, and did not know of his injury until sometime afterward. The train was running at a speed of from 18 to 20 miles an hour.

Considering then the accident and the circumstances attending it, we find from the evidence that the injured lad had entered upon the property of defendant after leaving the playground, which was a part of Fairmount Park and owned by the City of Philadelphia, had gone down the slope on defendant's right of way, crossed, perhaps diagonally, the tracks and ran under the Girard Avenue bridge upon defendant's tracks intending to pass out on the north side. As the evidence shows, the entire locality connected with this accident, except the ball ground, was defendant's property, in a place where defendant had a right to expect a clear track, where it was not anticipated persons would be, and where they had no right to be. To such a situation language of this...