Gillis v. Pennsylvania Railroad Co.

• Decision Date: 02 July 1868
• Citation: 59 Pa. 129
• Parties: Gillis <I>versus</I> The Pennsylvania Railroad Company.
• Court: Pennsylvania Supreme Court

Page 129

59 Pa. 129

Gillis versus The Pennsylvania Railroad Company.

Supreme Court of Pennsylvania.

May 29, 1868.

July 2, 1868.

May 29th 1868.

Before STRONG, READ, AGNEW and SHARSWOOD, JJ.

Error to the Court of Common Pleas of Cambria county: Of May Term 1868.

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A. Kopelin and R. J. Johnston (with whom was D. McLaughlin), for plaintiff in error.—The defendants were bound to use their property so as not to endanger others: Broom's Leg. Max. 257. Had the plaintiff been a trespasser it would not have excused the defendant's negligence: 2 Redfield 193, 194; Mayne on Damages 4, 44; Pierce on Railways 285; Cleveland and Cincinnati Railway v. Terry, 8 Ohio 570; Birge v. Gardner, 19 Conn. R. 507; Bird v. Holbrook, 4 Bing. 628; Brown v. Lynn, 7 Casey 510. There was negligence in keeping the platform in the condition in which it was, and the question whether there was concurring negligence was for the jury: Ohio & Miss. Railroad v. Gullett, 15 Indiana St. R. 487. Public policy requires that railroad companies should construct and keep their roads and appertenances as well for the public interest as their own: Pierce on Railways 229; Bank of Pittsburg v. Whitehead, 10 Watts 402; Kemmerer v. Edelman, 11 Harris 143; Bush v. Johnston, Id. 209; Holmes v. Watson, 5 Casey 457; Fisher v. Knox, 1 Harris 625; Pittsburg v. Grier, 10 Id. 54; Erie City v. Schwingle, Id. 384; 1 Redfield on Railways 603-607; Pierce on Railways 244, 245, 487, 488. Railroad companies must keep their platforms in a safe condition for those who are on them either by their direct permission or through contract with others: Sawyer v. Rutland and Burlington Railway, 27 Vt. Rep. 377; Marshall v. York, N. and B. Railroad, 11 C. B. 655; Gerhard v. Bates, 20 Eng. L. & Eq. 129; Broome on Com. Law 661, 679; Davis v. Lamoille County Plank Road Company, 27 Vt. 602; G. North. Railway v. Harrison, 14 Eng. L. & Eq. 189; Philadelphia and Reading Railway v. Derby, 14 How. 480; Cumberland Valley Railroad v. Hughes, 1 Jones 141; Carson v. Godley, 2 Casey 111; Grier v. Sampson, 3 Id. 183; Elliott v. Pray, 10 Allen 378. No privity need be shown: Pierce on Railways 270; Henderson v. Penna. Railroad, 1 P. F. Smith 325; Sweeny v. Old Colony and N. Railroad, 10 Allen 368; Corby v. Hill, 4 C. B. N. S. 556. The platform was dedicated to public use: Banks v. S. Yorkshire Railway, 32 Law Times J. Q. B. 26. One undertaking an act by which the conduct of others may be properly governed, is bound to do it so that no one will suffer by his negligence: Sweeny v. Old Colony and N. Railway, supra; Story on Bailments 11; Parsons on Contracts, vol. 1, 372, 582-589; Smith on Contracts 185; 1 Smith's Leading Cases 244; Coggs v. Bernard, 2 Ld. Raym. 909; 1 Redfield on Railways 194, note 6, 604; Thomas v. Winchester, 2 Selden 397. When the gist of the action is negligence it is a question for the jury: 1 Redfield on Railways 544, 545; Pierce on Railways 282; 2 Hilliard on Torts 398-409; Beatty v. Gilmore, 4 Harris 463; Beach v. Parmeter, 11 Id. 196; The Lackawanna and B. Railroad Co. v. Chenewith, 2 P. F. Smith 382; McGrew v. Stone, 3 Id. 436. Opening depots and platforms is primâ facie a license to all to enter, and the entry is not a trespass: Pierce on Railways 251, &c. Commonwealth v. Power, 7 Met. 596; Hall v. Power, 12 Id. 482; 1 Redfield on Railways 94. The defendants should have anticipated the gathering and provided against accident: Jones v. Bird, 5 B. & A. 837; Beers v. Housatonic Railroad Co., 19 Conn. 566, 569; Park v. O'Brien, 23 Id. 347; Ohio & Miss. Railway v. Gullett, supra; Burnham v. City of Boston, 10 Allen 290; Elliott v. Pray, Id. 378; Sweeny v. Old Colony and Newport Railway Co., supra. A trespasser even would recover under such circumstances: Mayne on Damages 42, 43; McCully v. Clarke, 4 Wright 399. The case should have been submitted to the jury: 3 Bl. Com. 379; Sedgwick on Statutory and Const. Law 542.

C. L. Pershing and J. Scott, for defendants in error.—There was no contract relation which imposed any duty on the defendants: Railroad Co. v. Skinner, 7 Harris 298; Railroad Co. v. Hummel, 8 Wright 377; Railroad Co. v. Norton, 12 Harris 465; Kelly v. Penna. Railroad, 7 Casey 372; Knight v. Abert, 6 Barr 472; Barker v. Midland Railw., 36 Eng. L. & Eq. 258; Pickford v. Grand Junction Railway, 8 M. & W. 372; Lucas v. Taunton & N. B. Railroad, 6 Gray 66; Brand v. Troy & S. Railroad, 8 Barb. 378; Lygo v. Newbold, 9 Exch. Rep. 302; Binks v. S. Yorkshire R. and R. Dun Co., 32 Law Jour. N. S. 26; Winterbottom v. Wright, 10 M. & W. 109; Comm'th. v. Power, 7 Metc. 602; Hall v. Power, 12 Id. 485; Heil v. Glanding, 6 Wright 493; Brooks v. Buffalo Railroad, 25 Barb. 600. The defendants are not within the maxim sic utere tuo, &c.: Sweeney v. Old Colony and N. Railroad, supra; Southcote v. Stanley, 1 Hurl. & Norm. 247; Howland v. Vincent, 10 Metc. 371, 1 Rol. Ab. 88; Adams v. Reeves, 11 Barb. 398. The defendants were not bound to keep the platform more than sufficient for their ordinary business: Withers v. N. Kent Railroad, 3 H. & N. 971; Blyth v. Birmingham W. Works, 36 Eng. L. & Eq. 506; Pitts., Ft. W. & C. Railroad v. Hinds, 3 P. F. Smith 512. The court properly ruled the case as a question of law: 1 Redfield on Railways 546; Catawissa Railroad v. Armstrong, 2 P. F. Smith 282.

The opinion of the court was delivered, July 2d 1868, by SHARSWOOD, J.

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. The servants of the company, after requesting them to leave, can remove them by whatever force may be necessary: Barker v. The Midland Railway Co., 18 C. B. 46; Corinth v. Power, 7 Metc. 596; Hall v. Power, 12 Id. 485; Harris v. Stevens, 31 Verm. 79. 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. It will appear on an examination of the interesting and elaborate discussion in the English courts of the question whether an action could be supported by such a trespasser for personal harm occasioned by a spring-gun, mantrap or dog-spike, set on the grounds of the defendant, in which it was determined that where there was no proper warning given, such an action well lies; that it was rested mainly on the ground that a man cannot lawfully do indirectly that which it is unlawful for him to do directly. He cannot shoot or maim or set a ferocious dog upon a mere trespasser. He shall not there place a concealed machine where it will be likely to do the same thing, or let such a dog loose in his grounds without warning: Deane v. Clayton, 7 Taunt. 489; Ilott v. Wilkes, 3 B. & Ald. 304; Bird v. Holbrook, 4 Bing. 628. It is, however, equally well settled that the owner of property is not liable to a trespasser, or to one who is on it by mere permission or sufferance, for negligence of himself or servants, or for that which would be a nuisance if it were in a public street or common, where all persons had a legal right to be without question as to their purpose or business.

It will be unnecessary to pass in review all the cases which in England and this country establish the principle, or to examine and reconcile if possible those which seem to conflict with it. It is put in many of them on the grounds of contributory negligence in the trespasser. It is plain, however, that the two principles are entirely independent of each other, though they do in fact often concur, and thereby have made confusion. In Hounsell v. Smith, 7 C. B. N. S. 731, the plaintiff fell down a quarry, which was left open and unguarded on the unenclosed waste lands of the defendant, over which, in passing from one public highway to another, the public were freely allowed to walk: it was held that the defendant, the owner, was under no legal obligation to fence the excavation, unless it was made so near to a public road or way as to constitute a public nuisance, or, in other words, to render the lawful use of such public road dangerous. "No right is alleged," says Mr. Justice Williams, "it is merely stated that the owners allowed all persons who chose to do so, for recreation or for business, to go upon the waste without complaint; that they were not churlish enough to interfere with any person who went there. He must take the permission with its concomitant conditions, and it may be, perils." This decision was cited with approbation and affirmed in Binks v. The South Yorkshire Railway and River Dun Co., 3 Best & Sm. 244. But a much stronger case, and more directly in point, is Lygo v. Newbold, 9 Exch. 302. It was there decided that even an express permission given to the plaintiff by the defendant's servant to occupy a place to which she had no right would not cast responsibility on the master. The plaintiff in that case, without the defendant's authority, but by the permission of his servant, rode in a cart along with some goods which the defendant had contracted to carry for her. The cart, being insufficient, broke down, and the plaintiff was injured. It was held that she could not recover.

Thus the three superior courts of England, the Common Pleas, Queen's Bench and Exchequer, concur in this doctrine.

But our own case of Knight v. Abert, 6 Barr 472, is on all fours with them. It was there decided that though no action lies in Pennsylvania for trespass by cattle pasturing on unenclosed woodland, yet, that not being a matter of right, the owner of land is not...