Gray v. Pennsylvania R.R. Co.

• Decision Date: 09 April 1928
• Docket Number: 4,5
• Citation: 293 Pa. 28,141 A. 621
• Parties: Gray et al., Appellants, v. Pennsylvania R.R. Co
• Court: Pennsylvania Supreme Court

141 A. 621

293 Pa. 28

Gray et al., Appellants, v. Pennsylvania R.R. Co

Nos. 4, 5

Supreme Court of Pennsylvania

April 9, 1928

Argued March 14, 1928

Appeals, Nos. 4 and 5, March T., 1928, by plaintiffs, from judgment of C.P. Allegheny Co., April T., 1925, No. 87, for defendant n.o.v., in case of Roy Lee Gray, a minor, by his father and next friend, Arthur F. Gray, and Arthur F. Gray in his own right, v. Pennsylvania Railroad Co. Affirmed.

Trespass for personal injuries. Before SWEARINGEN, J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiffs. Judgment n.o.v. for defendant. Plaintiffs appealed.

Error assigned, was judgment n.o.v., quoting record.

Judgment affirmed.

Robbin B. Wolf, of McCreery & Wolf, for appellant. -- Plaintiff was not a trespasser: Smith v. Ry., 274 Pa. 97; Francis v. R.R., 247 Pa. 425; Kremposky v. Coal Co., 266 Pa. 568; O'Leary v. R.R., 248 Pa. 4; Taylor v. Canal Co., 113 Pa. 162.

Duty of care is different where children are involved: Piepke v. Ry., 242 Pa. 321; P. & R. Ry. v. Spearen, 47 Pa. 300.

There was wanton negligence: Di Meglio v. Ry., 249 Pa. 319; Cahill v. Ry., 74 F. 285; Cover v. Transit Co., 290 Pa. 551.

William B. McFall, Jr., with him Dalzell, Fisher & Dalzell, for appellees, cited: P. & R. Ry. v. Hummell, 44 Pa. 375; Moore v. R.R., 99 Pa. 301; Bailey v. R.R., 220 Pa. 516; Leithold v. Ry., 47 Pa.Super. 137; Conn. v. R.R., 288 Pa. 494.

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

OPINION

MR. JUSTICE FRAZER:

Plaintiffs, father and minor son, sued to recover damages from defendant company for injuries to the minor plaintiff, sustained when he and four other boys were struck by an engine while walking on defendant's double track railroad on their way home from a swimming place in a creek adjacent to defendant's right-of-way, near the city of Connellsville. As the boys moved along close together they noticed a freight train coming towards them on the track along which they were walking. To avoid the approaching train they stepped to the adjoining track and almost immediately after the freight train had passed or perhaps before its last car had gone by, they were struck by an engine drawing two observation cars occupied by railroad officials on a tour of inspection, moving from 18 to 20 miles an hour in the same direction the boys were walking. Two of the youths were killed, two escaped unhurt and the minor plaintiff was seriously injured. There were two trials in the lower court; in the first the jury disagreed and was discharged and a motion for judgment on the whole record was presented by defendant and refused; on the second trial the jury returned a verdict in favor of the minor plaintiff for $ 12,000 and $ 2,165 for the father. A motion by defendant for judgment non obstante veredicto was later sustained and judgment entered for defendant, from which judgment this appeal is taken. The sole error assigned is the granting of the judgment n.o.v.

The facts disclosed by the evidence, as presented in the record before us, compel the conclusion, after every reasonable consideration is given to it in favor of appellants, that the judgment of the lower court must be sustained. The testimony shows unquestionably that the minor plaintiff, as well as his companions, was not, at the time of the accident, upon a permissive passageway over or upon the property of defendant company. Nowhere does the evidence establish the claim that the boys were using a path or way licensed to public use by the railroad company over or along its tracks. In fact, they, including the minor plaintiff, were not crossing the railway, as their homeward way towards Connellsville did not lead across defendant's roadbed. They were walking along the tracks longitudinally, and, when struck by the engine of the observation train, were either between the rails of the track or moving along on the ends of the ties. There was of course the usual space between the inner rails of the two tracks, but, as the evidence shows, the minor plaintiff was not on this space. He was in fact being carried, because of a sore foot, on the shoulders of another boy, and both were upon the track bed at the moment of the accident. They were consequently trespassers upon defendant's right-of-way. The situation is succinctly presented in the words of the learned trial judge: "The boys, including the minor plaintiff, were unquestionably trespassers upon the tracks of the defendant. They were walking along the track longitudinally, else the minor plaintiff could not have been struck by the engine of the special [train], for the freight train going in the opposite direction was occupying the northbound track. Therefore, he was not upon a 'well-defined path,' because there was none in the vicinity. He was where he had no right to be when the accident occurred."

Appellants contend there was a permissive way along the tracks, and it was testified in their behalf that pedestrians were accustomed to use the tracks at that point. Their testimony was invariably qualified by the admission that people "seemed to walk any place, anywhere they wanted to," and "sometimes they would be on the track and sometimes down on the side." The defendant company not only did not acquiesce in this unlawful use of its roadway but its police officers also warned and frequently arrested trespassers,...