Loughlin v. Pennsylvania Railroad Co.

• Citation: 87 A. 294,240 Pa. 174
• Decision Date: 31 March 1913
• Docket Number: 258
• Parties: Loughlin, Appellant, v. Pennsylvania Railroad Company
• Court: United States State Supreme Court of Pennsylvania

87 A. 294

240 Pa. 174

Loughlin, Appellant, v. Pennsylvania Railroad Company

No. 258

Supreme Court of Pennsylvania

March 31, 1913

Argued January 21, 1913

Appeal, No. 258, Jan. T., 1912, by plaintiffs, from judgment of C.P. No. 3, Philadelphia Co., March T., 1906, No. 559 refusing to take off nonsuit in case of Theresa Loughlin, by her next friend and father John L. Loughlin, and John L Loughlin in his own right, v. Pennsylvania Railroad Company. Reversed.

Trespass to recover damages for personal injuries. Before DAVIS, J.

The opinion of the Supreme Court states the facts.

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

Error assigned was the refusal to take off the nonsuit.

The second assignment of error is sustained, and the judgment of compulsory nonsuit is reversed, with a procedendo.

Eugene C. Bonniwell, with him John J. Green, for appellant. -- The defendant was bound to anticipate that these boxes lying unguarded on its tracks on a public highway might be found by children and that they might play with them and perhaps explode them: Rachmel v. Clark, 205 Pa. 314; Duffy v. Sable Iron Works, 210 Pa. 326.

The placing of these caps on a public highway was the proximate cause of plaintiff's injuries: Scott v. Ry. Co., 172 Pa. 646; Hoag v. Railroad Co., 85 Pa. 293; South-Side Pass. Ry. Co. v. Trich, 117 Pa. 390; Yoders v. Amwell Twp., 172 Pa. 447; Harriman v. Ry. Co., 45 Ohio 11 (12 N.E. Repr. 451); Finkbeiner v. Solomon, 225 Pa. 333.

Edwin Jaquett Sellers, of Sellers & Rhoads, for appellee. -- The evidence fails to show that it was negligence per se for defendant to have used torpedo caps, that the latter were of improper character, were negligently placed on the rails, or that they were used in a manner contrary to the regulations of defendant.

If an adult had picked up the torpedo, of course, it would have been a trespass. Plaintiff's child could not be guilty of contributory negligence yet it has no superior rights for injuries arising from its trespasses: Marsh v. Giles, 211 Pa. 17; Finkbeiner v. Solomon, 225 Pa. 333; Carpenter v. Miller, 232 Pa. 362.

Before FELL, C.J., BROWN, MESTREZAT, POTTER and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE POTTER:

This is an appeal from the refusal of the trial court to take off a judgment of compulsory nonsuit. From the testimony of the plaintiffs, it appears that on Sunday afternoon, March 12, 1905, Theresa Loughlin, a child nine years of age was with some companions walking down Lehigh avenue, where the defendant, the Pennsylvania Railroad Company, maintains along and upon the public street a railroad track over which it operates freight trains. Two young boys of the party picked up from the railroad track in the street two torpedoes which had not been exploded, and carried them away. These torpedoes are described in appellant's history of the case as being tin boxes cylindrical in shape and about the size of a silver half dollar. They are used by railroad employees to give warning of a train ahead on the track, being placed on the rail so as to explode when the engine of the train following passes over them. It appears that the children took the torpedoes to the home of plaintiff's uncle not knowing what they were or that they were dangerous. They tried without success to open the boxes with a knife. They were then taken by the children into the yard, and one of them attempted to open one of the boxes with a hatchet. The torpedo exploded and injured several of the children who were standing near by. Plaintiff was struck in the face by the fragments, and one of her eyes was seriously injured. The present action was brought in her behalf by her father as next friend, and in his own right, to recover damages for her injuries which are alleged to have been the result of the negligence of the employees of the defendant company in leaving the torpedoes upon the railroad track in a public street. At the close of the plaintiff's evidence, the trial judge entered judgment of compulsory nonsuit, and afterwards the court in banc refused to take the judgment off. Plaintiffs have appealed.

From his opinion it appears that the trial judge entered the nonsuit on the ground, first, that no negligence was shown on the part of the defendant company. We think, however, that as to this question the evidence was sufficient to take the case to the jury. The railroad track at the point in question was not located upon a private right of way, but occupied a public street of the city, where pedestrians and vehicles had equal rights with the railroad company. The jury might fairly have reached the conclusion that it was negligence to leave in this public thoroughfare, without guard or warning articles such as these torpedoes, which might be dangerous if picked up by children and carelessly handled. One of the witnesses for plaintiff, who had been employed by the defendant company as a brakeman on trains running along Lehigh avenue where the torpedoes were found by the children, testified that such torpedoes were used by the defendant company at that place as signals in foggy or misty weather to warn approaching trains of the proximity of a train in advance. It appears from the evidence that one of the torpedoes in question was found on top of the rail, but was not attached to it in any way when it was picked up. The...