Kremposky v. Mt. Jessup Coal Co., Ltd.

• Citation: 266 Pa. 568,109 A. 766
• Decision Date: 15 March 1920
• Docket Number: 237
• Parties: Kremposky v. Mt. Jessup Coal Co., Ltd., Appellant
• Court: United States State Supreme Court of Pennsylvania

109 A. 766

266 Pa. 568

Kremposky v. Mt. Jessup Coal Co., Ltd., Appellant

No. 237

Supreme Court of Pennsylvania

March 15, 1920

Argued February 24, 1920

Appeal, No. 237, Jan. T., 1920, by defendant, from judgment of C.P. Lackawanna Co., Oct. T., 1916, No. 412, on verdict for plaintiff, in case of Stephen Kremposky, by his father and next friend, John Kremposky and John Kremposky, in his own right, v. Mt. Jessup Coal Co., Ltd. Affirmed.

Trespass for personal injuries to a boy nine years old. Before EDWARDS, P.J.

Verdict and judgment for plaintiff for $2,916.65. Defendant appealed.

Error assigned was in refusing defendant's rule for judgment n.o.v.

The judgment is affirmed.

W. W Watson, for appellant. -- A compulsory nonsuit should have been granted: Duff v. Allegheny Val. R.R., 91 Pa 458; Cawley v. Pittsburgh, C. & St. L.R.R., 95 Pa. 398.

Under all the evidence plaintiff, Stephen Kremposky, was a trespasser and had no right to be upon the bridge: Rogers v. Lees, 140 Pa. 475; Thompson v. B. & O.R.R., 218 Pa. 444; Weaver v. Carnegie Steel Co., 223 Pa. 238; Hagan v. Del. R. Steel Co., 240 Pa. 222; Schleich v. B. & O.R.R., 245 Pa. 184; Phila. & Reading R.R. v. Spearen, 47 Pa. 300; Funk v. Electric Traction Co., 175 Pa. 559; Kline v. Elec. Traction Co., 181 Pa. 276; Kay v. Penna. R.R., 65 Pa. 269; Parker v. Washington Elec. St. Ry., 207 Pa. 438; McKee v. Harrisburg Traction Co., 211 Pa. 47; Keller v. Phila. & Reading R.R., 214 Pa. 83; Mulcahy v. Elec. Traction Co., 185 Pa. 427; Gallagher v. B. & O.R.R., 52 Pa.Super. 568.

Plaintiff must prove want of ordinary care: Flanagan v. Peoples Pass. Ry., 163 Pa. 102; Brague v. Northern Cent. Ry., 192 Pa. 242.

There were two ways by which Stephen Kremposky could have gone and avoided the accident: Kennedy v. Pittsburgh, 230 Pa. 244; Kennedy v. Philadelphia, 220 Pa. 273; Osborne v. Phila. & Reading Ry., 263 Pa. 472.

R. L. Levy, with him Leon M. Levy, for appellee. -- The case was for the jury: Counizzarri v. P. & R. Ry., 248 Pa. 474.

Before BROWN, C.J., STEWART, MOSCHZISKER, FRAZER, WALLING, SIMPSON and KEPHART, JJ.

OPINION

MR. JUSTICE WALLING:

This is an action of trespass brought by a father and minor son to recover for personal injuries to the latter. Defendant had a coal mining plant, including a breaker and other buildings, located on a thirty-five acre tract of land at Jessup, in Lackawanna County. This land was traversed by a ravine over which defendant many years ago constructed a bridge 175 feet long and 26 feet wide. A double track railroad occupied the center of the bridge, on each side of which was a plank walk 4 or 5 feet in width and protected on the outerside by a railing. The railroad was used for the storage and movement of coal cars. The bridge formed part of defendant's plant and as such was private property; however, for many years prior to the accident, people, both adults and children, had been accustomed to use the walks daily as a short cut between Jessup and Winton, and for other purposes, including attendance on ball games, going for cows, etc. This appears from all the evidence and is ample to show that the walks had become permissive ways.

On the afternoon of August 20, 1915, the plaintiff, Stephen Kremposky, nine years old, in going after cows, was crossing the bridge on one of the walks, in company with three other boys, and had just passed a coal car standing on the adjoining track, when it suddenly moved forward, as the result of a bump by another car, and knocked him down so that his left arm fell upon the track and was crushed. The car overhung the walk nearly two feet and left only a narrow space for pedestrians, and plaintiffs' evidence tends to show that a pile of coal occupied a part of such space at the place of accident. Defendant gave no warning of the movement of its cars; in fact, the brakeman in charge thereof testified that he could have seen the boys but did not look, although he knew people were accustomed to use the walk. Defendant's evidence is that it had posted notices forbidding trespassing upon the premises, but none within fifty feet of the bridge; also that it had repeatedly ordered boys from the bridge, but plaintiff was not identified as one to whom such orders had been given. Defendant also offered evidence tending to show that Stephen said a boy had pushed him under the car, but this he denied. The trial judge submitted the case to the jury, including the questions of negligence and contributory negligence, and this appeal by defendant is from judgment entered upon verdicts for plaintiffs.

The only question raised is that the court erred in submitting the case to the jury; not to have done so would have been manifest error. The evidence not only warranted but required a finding that the walk in question had become a permissive way; hence, those using it were licensees and not trespassers, and the rule as to the latter has no application. As to the former it is the duty of the owner of premises to exercise reasonable care to avoid inflicting injury upon those using a permissive way thereon Counizzarri v. Phila. & R. Ry., 248 Pa. 474; Taylor v. Delaware & Hudson Canal Co., 113 Pa. 162; ...