Kaproli v. Cent. R. of N.J.

• Decision Date: 15 October 1928
• Docket Number: No. 43.,43.
• Citation: 143 A. 343
• Parties: KAPROLI et al. v. CENTRAL R. OF NEW JERSEY.
• Court: New Jersey Supreme Court

143 A. 343

KAPROLI et al.

v. CENTRAL R. OF NEW JERSEY.

No. 43.

Court of Errors and Appeals of New Jersey.

Oct. 15, 1928.

Syllabus by the Court.)

Appeal from Supreme Court.

Action by Michael Kaproli, by Matrona Kaproli, his next friend, and Matrona Kaproli, individually, against the Central Railroad of New Jersey. Judgment of nonsuit, and plaintiffs appeal. Affirmed.

Nathaniel A. Jacoby, of Carteret, for appellants.

William A. Barkalow, of Freehold (De Voe Tomlinson, of New York City, of counsel), for respondent.

KAYS, J. On or about April 4, 1925, the plaintiff, an infant 4 years old, was playing with other children in a vacant lot adjoining the right of way of the defendant railroad company. A freight train was moving by-over the right of way while the plaintiff was at play and had slowed down at the particular place where the children were playing. The tracks of the railroad company ran through a cut at this particular place, which cut varied from 2 1/2 to 8 feet in depth, and was situate in the borough of Carteret, Middlesex county, N. J. The plaintiff with other boys slid down the embankment on the railroad company's right of way, and attempted to climb on the freight train. The plaintiff was unsuccessful in his attempt to climb upon the moving train, fell under a car, and as a result lost his left foot. It appeared from the plaintiff's case that freight trains were compelled to slow down while passing through this cut, and that children often took advantage of this situation and climbed upon the cars. The employees of the railroad company, when they saw children climbing upon the cars or attempting to, sent them away or drove them off.

The claim of the plaintiff is based upon the theory that, where a railroad company through its employees knows of the habit of these children, that knowledge is attributable to the company, and the company is bound to use reasonable care to prevent these children from trespassing on the right of way of the railroad company or attempting to climb on the cars passing over the railroad tracks on said right of way.

The trial judge considered this contention, and found it without merit; thereupon directed a verdict of nonsuit.

The children, when they went upon the right of way of the railroad company and attempted to climb upon the cars or did climb upon the cars of the defendant company, were trespassers. Such being the case, the fact that they were too young to realize the danger which they thereby placed themselves in imposed no obligation upon the defendant railroad company. Chief Justice Magie, speaking for the Supreme Court in (he case of Turess v. New York, Susquehanna & Western Railroad Co., reported in 61 N. J. Law, 314, 40 A. 614, said:

"In my judgment, it. follows that the liability of a railroad company to a child injured by playing on its turntable cannot arise out of a duty imposed on the company by reason of a supposed implied...