Grimmer v. Pennsylvania Railroad Co.

• Decision Date: 06 April 1896
• Docket Number: 329
• Parties: Harry J. Grimmer, Appellant, v. Pennsylvania Railroad Co
• Court: Pennsylvania Supreme Court

34 A. 210

175 Pa. 1

Harry J. Grimmer, Appellant, v. Pennsylvania Railroad Co

No. 329

Supreme Court of Pennsylvania

April 6, 1896

Argued March 23, 1896

Appeal, No. 329, Jan. T., 1895, by plaintiff, from judgment of C.P. No. 4, Phila. Co., March T., 1894, No. 536, refusing to take off nonsuit. Affirmed.

Trespass for personal injuries. Before ARNOLD, J.

At the trial it appeared that plaintiff was injured after dark on October 31, 1893, while approaching with a companion named O'Neill, Wissonoming station, on the New York branch of defendant's railroad. Plaintiff and his companion, being unfamiliar with the road to the station, made inquiry, and were told to follow a white clay path which led to the station. The path ran parallel with the tracks, about eighteen feet west of them, within the defendant's right of way, and ended at the station platform on the farther side of Comly street, which crossed the railroad at the station. This path had been continuously used for many years by the public as a way to the station. At the time of the accident Comly street had been excavated for an undergrade crossing and the defendant placed the obstruction on the path just south of the street. During the progress of the work, the path became defined around the obstruction and across Comly street; at first, on a strip of dirt left unexcavated on the west side of the track; but as the work proceeded this was dug away and the people had to cross by a temporary trestle on which were the tracks themselves. Finally, the work was completed, the street reopened at the depressed grade, the path closed and obliterated, and Keystone street, parallel with the railroad, was opened to Darkrun lane instead. The plaintiff described the accident as follows:

"We followed that pathway which we were instructed to go. Just as we had been walking, I think it must have been a yard or something like that, we walked that path, when we found ourselves confronted by an obstruction, but the pathway led around the obstruction, and we followed that pathway yet. Meantime, it got dark, and all of a sudden I found myself on more obstructions. I was walking alongside of the track on a pathway, and all of a sudden I found myself confronted. I seen that I wasn't walking on solid ground no more, but only about maybe a yard or so I seen a stone pier. This appeared to me only a temporary thing, because I didn't know that the pathbeaten didn't lead no further any more but the minute we had been on there, or I had been on there I realized danger, and I turned to Mr. O'Neill, and told him in these words, that I think this was a structure of some kind, but we didn't have no time any more to do anything, what to do. The train came and caught us all of a sudden while I was saying that to him. There was no time thinking about doing things any more; all I could do to tell him to jump, and he succeeded in jumping while the cowcatcher struck my leg. I didn't know whether it was the cowcatcher or a wheel. I couldn't say that for sure, but I think it must have been the cowcatcher. Q. What happened after that? A. Then I was thrown on the stone pier, and from there I dropped down. Q. Down into what? A. Into water and mud, and one thing and another. Q. What did you find out afterwards that they had been doing there with the street? A. Afterwards I found out that they had been cutting the street through there, and that this was a temporary trestle bridge that I got on. I found that out afterwards. Q. The path led upon this tresslework, did it? It led right into it. Q. How long were you on that trestlework before you saw the train -- did you have any time to think? A. I didn't have any time to think at all. It led us right into it. Q. The train came upon you? A. Yes, sir; before we were on the bridge right. Q. How far was this from the station where you were struck? A. As I learned afterwards, the station was right on the other side of the bridge."

Daniel P. O'Neill, who was with the plaintiff, corroborated his story as follows: "Q. You were walking rapidly along that well defined path of a whitish color, with a reflected light in your face? A. Yes, sir. Q. Could you see the ground distinctly? A. Not very far ahead of us. Q. What happened then? A. We walked, and we came to some obstruction where there was some timbers, or something. Q. An obstruction where? A. On this path. Q. What did the path do then? A. The path wound around it. Q. What did you do? A. We kept on. Q. What did you find? A. We went a few yards further, and the poor man who got his leg off discovered that he was on a trestle structure. Q. Was he ahead of you, or behind you? A. He was a few steps ahead of me. Q. Was he on the track, or on the path, or where? A. I should judge then that he was walking on the ties, but at that time the ties were still on the...