Erie R. Co. v. Swiderski

• Citation: 197 F. 521
• Decision Date: 24 June 1912
• Docket Number: 45.
• Parties: ERIE R. CO. v. SWIDERSKI.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

197 F. 521

ERIE R. CO. v. SWIDERSKI.

No. 45.

United States Court of Appeals, Third Circuit.

June 24, 1912

Collins & Corbin, of Jersey City, N.J. (George S. Hobart, of counsel), for plaintiff in error.

J. P Tumulty (George E. Cutley, of counsel), for defendant in error.

Before GRAY and BUFFINGTON, Circuit Judges, and BRADFORD, District judge.

BUFFINGTON Circuit Judge.

In the court below, Anastasia Swiderski, a minor citizen of New Jersey, brought suit by her next friend and recovered a verdict against the Erie Railroad Company, a corporation and citizen of New York, to recover damages for personal injuries suffered by her through its alleged negligence. On entry of judgment thereon this writ was sued out by the railroad.

On the day of the injury, the plaintiff, then between 7 and 8 years old, with other children, was playing about some five or six disconnected freight cars which were standing on a main freight siding of defendant lawfully located on Twelfth street in Jersey City. This track, in railroad parlance called a 'main lead,' and two spurs therefrom, were used in switching freight cars to private warehouses on each side of the street. Plaintiff and other children often played under and about the freight cars standing on these tracks, so that, as stated in the court's charge:

'It may be accepted in this case as an established fact that children were around those cars at different times and that the defendant company's employes knew it.'

On the day in question, an engine, pushing ahead two cars of apples destined for one of the warehouses, came onto said main lead. To reach the desired spur it was necessary to couple up the standing cars with the apple cars and push them all to the warehouse. In doing so, the plaintiff charged, and the verdict established the fact, that defendant was guilty of negligence in that its crew, knowing children were accustomed to play about such standing cars, moved them without due lookout for, or warning to, the children. The verdict also established the fact that plaintiff by reason of infancy was not guilty of contributory negligence. It is now, as it was upon the trial, contended by defendant that peremptory instructions in its favor should have been given on two grounds: First, that plaintiff's recovery was barred by section 55 of the General Railroad Law of New Jersey (3 Comp.St.p. 4245; see footnote ^[1] ); and, second, that even if not barred thereby plaintiff was a licensee for whose injury through defendant's negligence the latter was only answerable if such negligence was wanton and willful.

The answer to the first question depends on whether a child playing at the locus in quo, with the implied consent of the defendant, and whose infancy is such that it cannot be charged with contributory negligence, falls within the provisions of such statute. Prior to the passage of this statute, the law was settled that a child of such tender years as to be incapable of discerning danger or of exercising sufficient care for its own safety could not be held guilty of contributory negligence. 1 Thompson's Commentaries on the Law of Negligence, Sec. 303. It follows therefore, that if this statute is held to be simply declaratory of the pre-existing law, the word 'person' must be held to include such infants only as in law may be guilty of contributory negligence. On the other hand, if the statute is held to impose on such immature infants the burden of contributory negligence, it is a nonremedial, and in its effect well nigh a penal, statute. one that the statute was simply declaratory of the humane principles of the common law, the other depriving children of those common-law rights, it would seem clear that, unless constrained by express and unquestionable language, the former construction should prevail, for:

'Where a statute is equally susceptible of two constructions, one of which is in harmony with a settled principle of the common law and the other in derogation of it, the courts will adopt the former. ' Ryan v. Couch, 66 Ala. 244.

And as was further said in Maxwell's Interpretation of Statutes, 96:

'It is in the last degree improbable that the Legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because, in their widest and perhaps natural sense, they have that meaning, would be to give them a meaning in which they are not generally used.'

The rule on this subject is well stated...