Lodge v. Pittsburgh & Lake Erie Railroad Co.

• Decision Date: 05 January 1914
• Docket Number: 234
• Citation: 243 Pa. 10,89 A. 790
• Parties: Lodge, Appellant, v. Pittsburgh & Lake Erie Railroad Company
• Court: Pennsylvania Supreme Court

89 A. 790

243 Pa. 10

Lodge, Appellant, v. Pittsburgh & Lake Erie Railroad Company

No. 234

Supreme Court of Pennsylvania

January 5, 1914

Argued October 14, 1913

Appeal, No. 234, Oct. T., 1913, by plaintiffs, from order of C. P. Lawrence County, June T., 1908, No. 5, refusing to take off nonsuit, in case of Silas Lodge and Lucy Lodge, his wife parents of Silas Dale Lodge, deceased, v. The Pittsburgh &amp Lake Erie Railroad Company. Reversed.

Trespass to recover damages for death. Before PORTER, P.J.

The opinion of the Supreme Court states the case.

The court entered a judgment of compulsory nonsuit which it subsequently refused to take off. Plaintiffs appealed.

Error assigned was in refusing to take off compulsory nonsuit.

The judgment of the court below is reversed, with a procedendo.

Robert K. Aiken, for appellants.

J. Norman Martin, with him Norman A. Martin, of Martin & Martin, for appellee.

Before BROWN, MESTREZAT, POTTER, STEWART and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE POTTER

This is an appeal from the refusal of the court below to take off a judgment of compulsory nonsuit. Plaintiffs' evidence tended to show that defendant's railroad, in passing through the Borough of Beaver Falls, consists of three parallel tracks running on the west side of a stream known as the Beaver river or creek. At the point where the accident occurred boys and men had been accustomed for many years to cross the railroad tracks in order to reach the river for bathing and fishing and at times as many as fifty or sixty persons would cross in one day. There was a well-defined path worn on each side of the railroad and upon the cinders on the road bed. There is an embankment five or six feet high along the side of the railroad, but it is "sort of washed out" and those crossing the tracks can easily get up and down, at the river.

On August 14, 1907, at about one o'clock p.m., a son of the plaintiffs', named Silas Dale Lodge, who was about eleven years and six months old, started with three companions to go to the river to swim. When the boys came to the railroad, a freight train was passing, and while waiting for it to pass, they stood between the tracks. While standing there, a passenger train came along, running at the rate of about fifty miles an hour. The last seen of Dale Lodge alive, was when he was standing on the path between the two tracks. After the trains passed he was found lying dead on the path. The passenger train stopped, and backed up and took up the body. There was ample testimony to support a finding that the place in question was a permissive crossing for people on foot. It appeared that it had been so used for many years. That a path had been there before the railroad was built, and that this path continued in use across the railroad, as a means of access to the river at that point. And that during the months of July and August, some fifty or sixty boys and men would use that path as a crossing place each day. The rule of law applicable to such a situation was definitely stated in Taylor v. Canal Company, 113 Pa. 162, by Mr. Justice STERRETT, who after citing certain cases, said (p. 175): "The principle clearly settled by the foregoing, and many other cases that might be cited, is that when a railroad company has for years, without objection, permitted the public to cross its tracks at a certain point not in itself a public crossing, it owes the duty of reasonable care towards those using the crossing; and whether in a given case such reasonable care has been exercised, or not, is ordinarily a question for the jury under all the evidence."

In the present case, the acquiescence of the defendant company for so long a period, in the crossing of its tracks at the point in...