Kowaleski v. Pennsylvania R. Co., 6834.

• Decision Date: 10 April 1939
• Docket Number: No. 6834.,6834.
• Citation: 103 F.2d 827
• Parties: KOWALESKI v. PENNSYLVANIA R. CO.
• Court: U.S. Court of Appeals — Third Circuit

103 F.2d 827 (1939)

KOWALESKI v. PENNSYLVANIA R. CO.

No. 6834.

Circuit Court of Appeals, Third Circuit.

April 10, 1939.

E. Burke Finnerty, of Jersey City, N. J., for appellant.

John A. Hartpence, of Jersey City, N. J., and Thorn Lord, of Trenton, N. J., for appellee.

Before MARIS and CLARK, Circuit Judges, and KALODNER, District Judge.

MARIS, Circuit Judge.

In the District Court for the District of New Jersey the plaintiff, John Kowaleski, Administrator ad prosequendum of the Estate of Henry Kowaleski, deceased, brought suit against the defendant, The Pennsylvania Railroad Company, under the Death Act of New Jersey (Rev.1877, p. 294), R.S.N.J.1937, 2:47-1 to 2:47-6, for the death of Henry Kowaleski, his twelve year old son. The plaintiff's complaint contained the following averments:

"4. On said July 25, 1933, the said decedent, Henry Kowaleski, was a trespasser upon certain railroad tracks running through the City of South Amboy in Middlesex County, New Jersey, over which tracks the defendant, The Pennsylvania Railroad Company, was operating a train in a general easterly direction, said train being known as train number 720, engine number 3749, which train was being operated by the said defendant through its agent the engineer, Edward M. Welch, when because of the willful negligence, carelessness and unskilfulness of the said defendant through its said agent the engineer aforesaid, as hereinafter set out, the said engine and train was caused to come into violent contact with the said decedent Henry Kowaleski, inflicting injuries from which the said Henry Kowaleski died the same day.

"5. The willful negligence, carelessness and unskilfulness of the defendant consisted in this: that while its agent, the engineer in charge of said train, was proceeding in an easterly direction on said track toward Perth Amboy, New Jersey, he noticed the presence of three boys (one of whom was the decedent Henry Kowaleski) walking easterly along said east bound track when he, the said engineer, was still at a great distance from said boys, and at the same time the said engineer noticed a train of The Central Railroad Company of New Jersey proceeding in a westerly direction on the westerly track adjoining and adjacent to the said east bound track upon which said defendant's train was proceeding, and the said engineer operating the said defendant's train saw and knew that said boys were in a position of peril and danger, and should have exercised reasonable care under the circumstances to have avoided striking the said boys, by slowing down the speed of his said train so as to avoid striking the said three boys as it was reasonably within his power to do, but wholly disregarding this duty, he willfully, negligently, carelessly and unskilfully caused, allowed and permitted his said engine and train to proceed along said track without diminishing or retarding the speed thereof, and without taking any steps to have his said engine and train sufficiently under his control to stop said train before striking said boys, and he did thereby cause, allow and permit his said train to strike the three boys aforesaid, one of whom was the decedent Henry Kowaleski."

Under the New Jersey practice then followed in the court below the defendant moved to strike out the complaint upon the ground that it did not state a legal cause of action. This motion, which was the equivalent of a demurrer (Gross v. New York Central R. Co., 99 N.J.L. 414, 125 A. 110), was granted by that court, which entered judgment for the defendant. We think that its action in so doing, which is the subject of the present appeal, must be affirmed.

Section 55 of the General Railroad Act of New Jersey, P.L.1903, c. 257, p. 673, R. S.N.J.1937, 48:12-152, is as follows: "It shall not be lawful for any person other than those connected with or employed upon the railroad to walk along the tracks of any railroad except when the same shall be laid upon a public highway. If any person shall be injured by an engine or car while walking, standing or playing on a railroad or by jumping on or off a car while in motion such person shall be deemed to have contributed to the injury sustained and shall not recover therefor any damages from the company owning or operating the railroad. This section shall not apply to the crossing of a railroad by any person at any lawful public or private crossing."

This statute applies to all persons alike, without distinction as to age or physical or mental condition. Barcolini v. Atlantic City & S. R. Co., 82 N.J.L. 107, 81 A. 494; Erie R. Co. v. Hilt, 247 U.S. 97, 38 S.Ct. 435, 62 L.Ed. 1003. The act by declaring trespassers upon railroad tracks to be guilty of contributory negligence as a matter of law bars recovery by them against the railroad in actions based upon the negligence of the latter. Barcolini v. Atlantic City & S. R. Co., supra; Erie R. Co. v. Hilt, supra; Erie R. Co. v. Duplak, 286 U.S. 440, 52 S.Ct. 610, 76 L.Ed. 1214. It is, therefore, clear that if the plaintiff's complaint was based upon the negligence of the defendant it was properly stricken out.

Contributory negligence of the plaintiff, however, does not bar recovery in an action for willful or wanton injury, sometimes as in this case improperly called willful or...