Kaseman v. Borough of Sunbury

• Citation: 197 Pa. 162,46 A. 1032
• Decision Date: 11 July 1900
• Docket Number: 158
• Parties: Kaseman v. Borough of Sunbury
• Court: Pennsylvania Supreme Court

46 A. 1032

197 Pa. 162

Kaseman v. Borough of Sunbury

No. 158

Supreme Court of Pennsylvania

July 11, 1900

Argued May 22, 1900

Appeal, No. 158, Jan. T., 1900, by plaintiff, from order of C.P. Northumberland Co., May T., 1899, No. 431, refusing to take off nonsuit, in case of Hannah E. Kaseman v. Borough of Sunbury. Affirmed.

Trespass for death of plaintiff's husband. Before McCLURE, P.J. specially presiding.

The facts appear by the opinion of the Supreme Court.

The court entered a compulsory nonsuit which it subsequently refused to take off.

Error assigned among others was in refusing to take off nonsuit.

The assignments of error are overruled and the judgment is affirmed.

S. B Boyer, with him C. M. Clement, for appellant, cited Gilmore v. Federal St., etc., Pass. Ry. Co., 153 Pa. 31, Township of Ashon v. McClure, 102 Pa. 322, Phila. & Reading R.R. Co. v. Troutman, 11 W.N.C. 453, Penna. R. Co. v. Lewis, 79 Pa. 33, and Taylor v. Delaware & Hudson Canal Co., 113 Pa. 162.

J. F. Schaffer, with him Walter Shipman, for appellee, cited Moore v. Penna. R. Co., 99 Pa. 301, Ehrisman v. East Harrisburg City Pass. Ry. Co., 150 Pa. 180, Penna. R. Co. v. Mooney, 126 Pa. 244, and Delaware, L. & W.R.R. Co. v. Cadow, 120 Pa. 559.

Before MITCHELL, DEAN, FELL, BROWN and MESTREZAT, JJ.

OPINION

MR. JUSTICE MESTREZAT:

This was an action of trespass brought by the plaintiff to recover damages for the death of her husband caused by injuries sustained by falling into an opening in the embankment at the intersection of Penn street and Center alley in Sunbury.

The following facts were conceded or established by admittedly competent testimony. James Kaseman, the plaintiff's husband, and D. W. Shipman, Esq., residents of Shamokin, went to Sunbury on June 21, 1898. They attended a social gathering tat day, near Sunbury, and were together until the accident occurred which resulted in the death of Kaseman. They spent the evening at the rooms of the association of the Elks, which are located on the north side of Market street, between Third and Fourth streets, in Sunbury. About 12:30 A.M. of the morning of June 22, 1898, they left these rooms and started for the passenger depot of the Philadelphia & Reading Railroad with the intention of taking a train at 12:52 A.M. for their home at Shamokin. The night was dark. This station is located at the corner of Second and Penn streets, about five squares in a southwesterly direction from the Elks' rooms. Market, Chestnut, Penn and Church streets extend east and west and intersect at right angles Second, Third and Fourth streets and another small street between Second and Third streets, known as Center alley. The plaintiff's husband and Mr. Shipman on leaving the Elks' rooms started west on Market street, but when they reached Third street they found a freight train moving north on the track of the Pennsylvania Railroad which extends along Third street. Seeing they could not cross Third street without going over the overhead crossing, they turned south on Third street intending to go to Chestnut street and thence along it and Second street to the depot. When they arrived at Chestnut street, however, they found their passage west on it obstructed by the same train and they continued along Third street till they came to Penn street. The two tracks of the Philadelphia & Reading Railroad are laid on Penn street at an elevation of eight or ten feet above the surface. These tracks were first laid in 1883 or 1884 upon trestlework erected in the bed of the street, but subsequently a fill was made except where the railroad crosses Center alley, and thus was constructed the embankment on which the tracks now rest. From Third street to Center alley there is a roadway on the north side of the embankment but it does not extend from Center alley to the railroad station at Second street. Pedestrians desiring to go between Third street and Second street have been accustomed to enter upon the embankment and pass along it crossing Center alley on the trestling upon which the railroad tracks are laid. The trestlework was of sufficient height to permit traveling underneath it. Planks are laid on it longitudinally with the tracks at Center alley, but the trestling only extends the width of the tracks, with no foot walk or guard rail at either side of it. On the night of the accident, when the deceased and his companion were at Chestnut or Penn street en route to the depot, they heard the train whistle for the station. From Chestnut street they went south on Third street between cars standing on the Pennsylvania tracks to Penn street. Here, on the west side of Third street, they, without looking for a sidewalk on either side of Penn street, went upon the embankment and on the Reading track or along the edge of it and started immediately westward along the tracks for the depot. They ran, "not at full speed" but "at a pretty good pace," in order to make the Reading train, Shipman passing between the two tracks and the deceased running on the outer ends of the ties of the northern track. Kaseman struck his foot against the switch rod which is a short distance east of Center alley, but recovered himself and continued to run until he stumbled and fell at or near the trestlework supporting the railroad bridge over Center alley, and received the injuries from which he died. There are dwelling houses located on both sides of Penn street between Third street and Center alley. At the intersection of Penn street with Second and Third streets, there were notices warning the public against trespassing on the railroad. These notices were in large letters and were posted on the embankment. From the plan of the locus in quo printed in the appellant's paper-book it appears there are two routes from the Elks' rooms on Market street to the Reading depot, equally as direct as that taken by Kaseman and his companion on the night of the accident; by the one, you go west two squares on Market street, crossing the Pennsylvania tracks on Third street by an overhead crossing, to Second street, thence south on Second street two squares to the depot; by the other, you go west one square on Market to Third street, south on Third street one square to Chestnut, west on Chestnut street one square to Second street, thence south on Second street one square to the depot.

The plaintiff having closed her testimony, the court, on motion of defendant's counsel, entered a nonsuit, which it subsequently refused to take off. In this, we think, there was no error.

The statement is not printed, but the learned counsel for the plaintiff states her contention in their printed brief as follows: "That in effect this embankment as constructed was a substituted highway, ten feet in width from the outer or northern rail; that the permissive use of it by all persons passing east and west along Penn street made the defendant responsible for its proper maintenance and that the construction of the way over Center alley without proper foot walks on either side of the tracks and guard rails was a dereliction of duty for which the borough was answerable in damages."

The appellant is clearly in error in assuming that the embankment or any part of it was a highway on which the deceased had the right to enter and walk on the night of the accident. It may be conceded, for it abundantly appears by the testimony, that people were accustomed to use the embankment as a footpath between Second and Third streets. This, however, of itself did not constitute it a public highway, which the defendant was required to maintain in a safe condition. Nor did it, under the circumstances, show an acquiescence by the railroad company or the borough in its use as such. It must be assumed that the embankment was constructed to take the place of the trestle work on which the railroad tracks were laid in 1883, and which continued to support the tracks until it was replaced by the embankment. Such being the case we cannot presume that the railroad company or the defendant intended that any part of it should be used by the public. As we have said, the use of it by the people in the manner shown by the testimony did not establish that fact. Their path was not across the embankment, but along it. The necessary appliances of the railroad, in addition to the tracks, occupied the ground claimed to be permissively appropriated by the public for a pathway. This clearly negatives the presumption that the use of it was permissive. It will not be presumed that the company intended that a part of its right of way in actual use in the operation of its road should be appropriated longitudinally by pedestrians as a public thoroughfare.

It also appears from the testimony, that at the bridge over Center alley there were no sidewalks or footways on which persons using the embankment could cross that alley, and that such persons were necessarily...