Erie Co v. Duplak, 608
Decision Date | 23 May 1932 |
Docket Number | No. 608,608 |
Parties | ERIE R. CO. v. DUPLAK et al |
Court | U.S. Supreme Court |
Messrs. Ralph E. Cooper, George S. Hobart, and Duane E. Minard, all of Newark, N. J., for petitioner.
Mr. Jack Rinzler, of Passaic, N. J., for respondent.
Michael Duplak, a boy five years of age, sustained personal injuries, resulting in the loss of a leg, while playing upon a railroad bridge built by petitioner over a canal in Passaic, N. J. The track crossing the bridge was used only for drilling freight cars-that is, for pulling them into and out from sidings. At the time of the accident the boy was resting on his right knee, looking down into the water of the canal, with his left leg extended over the rail and under one of a string of cars standing on the bridge. While he was in that position, other cars were backed against the standing cars, causing them to move and run over the boy's leg. A sign stood at one end of the bridge warning of danger and forbidding all persons to go upon the bridge. It appeared that from time to time boys had played upon the bridge and had put diving boards on the lower tiers which were used during the summer when the boys were swimming. Naturally, they were not in use in December, when the accident happened.
In an action brought in the name of the boy and his parents in a federal District Court for New Jersey, a verdict and judgment were rendered against the petitioner, and affirmed on appeal by the court of appeals. 53 F.(2d) 846.
It is unnecessary to discuss the question of negligence. The case is ruled by a statute of the state of New Jersey, which makes it unlawful 'for any person other than those connected with or employed upon the railroad to walk along the tracks of any railroad except when the same shall be laid upon a public highway; if any person shall be injured by an engine or car while walking, standing or playing on any railroad * * * such person * * * shall not recover therefor any damages from the company owning or operating said railroad.' Laws of New Jersey 1903, c. 257, p. 645, § 55 (3 Comp. St. 1910, p. 4245, § 55). This statute has been construed by the Supreme Court of the state so as to deny recovery for the injury of a child twenty-one months old who had strayed upon the private right of way of a railroad company at a place not a public crossing, and who was there struck by a car, resulting in the loss of one of his legs. The court held that the statute barred recovery by any person who walked, stood, or played upon a railroad, and applied to all persons alike without distinction as to age or physical or mental condition. Barcolini v. Atlantic City & S. R. R. Co., 82 N. J. Law, 107, 81 A. 494.
The rule of this decision was accepted and applied in Erie R. R. Co. v. Hilt, 247 U. S. 97, 38 S. Ct. 435, 62 L. Ed. 1003. That was the case of a boy less than seven years old, who had been playing marbles near a siding of the railroad and was injured while endeavoring to reach a marble which had rolled under a car standing upon the siding. The Circuit Court of Appeals for the Third Circuit sustained a recovery. This court reversed on the New Jersey statute, supra as construed in the Barcolini Case. An attempt...
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