Moore v. Pennsylvania R. R. Co.

Decision Date23 January 1882
Citation99 Pa. 301
PartiesMoore and Wife <I>versus</I> Pennsylvania Railroad Co.
CourtPennsylvania Supreme Court

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

ERROR to the Court of Common Pleas No. 3, of Philadelphia county: Of January Term 1881, No. 179.

COPYRIGHT MATERIAL OMITTED

MacGregor J. Mitcheson, for the plaintiff in error.—The boy was not a trespasser; he had a right to cross the track at or near the highway crossing, and there being no affirmative proof that he was warned not to do so, or that he did not use ordinary care, the defendants are liable.

Although the witness, N. B. Thomas, said the boy was walking from sleeper to sleeper, he also said "he could cross there as well as anywhere else; it was the shortest route to the store."

He was doubtless waiting for the up train to pass, and was caught as in a trap by the down train running at a terrible speed, behind time, and neither blowing a whistle nor ringing a bell. These facts were at least sufficient to take the case to the jury: Philadelphia & Trenton R. R. Co. v. Hagan, 11 Wright 244; Catawissa R. R. Co. v. Armstrong 2 P. F. Smith 282; Penna. R. R. Co. v. Kelly, 7 Cas. 372; Reeves v. R. R. Co., 6 Casey 454.

Wayne Mac Veagh, for the defendant in error.—This is the case of a trespasser, to whom a railroad company owes no duty. It is plain that the boy was either using the railroad track as a highway in walking south towards Orthodox street, instead of using Trenton avenue which ran alongside; or, if he was in the act of crossing the track, he was doing so not at a crossing, and was, moreover, actually loitering on the track to wait for the up train to go by. There was, therefore, no evidence of negligence by the railroad company, and the nonsuit was righty granted: Goshorn v. Smith 8 W. N. C. 289; Cauley v. Railroad Co. 11 W. N. C. 164.

Mr. Justice GREEN delivered the opinion of the Court, January 23d 1882.

The only evidence in this case, as to the position of the deceased when he was struck, was that given by the plaintiffs' witness. He testified: "The boy was on the outer side, on the end of the sleepers, walking at twenty to twenty-five feet north of telegraph pole; he was walking from sleeper to sleeper when I saw him; about a second of time from my sight of him, and when he was struck." He also said, "the lad was twenty or twenty-five feet north of telegraph pole when struck. . . . walking on outer edge of sleepers towards Orthodox street. Trees are planted in front of houses; there is a side-walk and trees outside; there is a three or three-and-a-half feet walk for passengers to Orthodox street." At another place he testified: "I squatted down to look under train running up, and saw boy on outer end of sleepers, walking; the train then was right on him; train struck him." The foregoing being the only testimony as to what the boy was doing at the moment he was struck, it was affirmatively established, and entirely undisputed, that the deceased was walking on and along the track at the time of the accident. He was not on the track at a public crossing, nor was he in the act of crossing. It is true that the railroad track at this place was laid upon the bed of a public street, and hence the right to cross it was not limited to the highway or street crossings. But the boy was walking along the track, and not across it, when he was struck. This he clearly had no right to do. There was an ample side-walk and roadway for all foot passengers and others desiring to proceed in the same direction with the railroad. The boy was sent on an errand to a store on Orthodox street. He had not yet reached that street, but was going...

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