Philadelphia, Baltimore and Wilmington R.R. Co. v. Layer

• Decision Date: 19 April 1886
• Docket Number: 425
• Citation: 112 Pa. 414,3 A. 874
• Parties: Philadelphia, Baltimore and Wilmington R.R. Co. v. Layer
• Court: Pennsylvania Supreme Court

3 A. 874

112 Pa. 414

Philadelphia, Baltimore and Wilmington R.R. Co. v. Layer

No. 425

Supreme Court of Pennsylvania

April 19, 1886

Argued March 22, 1886

ERROR to the Court of Common Pleas, No. 1, of Philadelphia county Of January Term, 1885, No. 425.

Trespass on the case by Clarence William Layer by his next friend and father, William Henry Layer, against the Philadelphia Wilmington and Baltimore Railroad Company, to recover damages for injuries sustained by him by reason of the alleged negligence of the said railroad company in running their cars. Plea, not guilty.

The facts, as they appeared on the trial before PEIRCE, J., are set out in the opinion of the Supreme Court.

The defendant presented the following points:

1. It being conceded that the child crossed between the cars, taking hold of the coupling just as the train started, there was no duty of the defendant to it, and the verdict should be for the defendant.

Ans. I decline to so charge.

2. When a train covers, in part, a crossing while on a journey, no one has a right to pass under it at any point. It is the duty of all to stop or go around, and the defendant had a right to presume that this duty would be performed, and the verdict should be for the defendant.

Ans. I affirm this so far as it relates to a train actually in motion. I will qualify it to read, "When a train covers a crossing and is actually in motion, it is illegal for one to cross between its cars, and while it is not in motion it is illegal for any one capable of contributory negligence to cross," except in case of a child of tender years, who is not capable of contributory negligence, and if you find the plaintiff crossed, or attempted to cross, while the cars were in motion, the verdict in such case should be for the defendant. That would be a presumption and point of law certainly well taken with respect to an adult, as one capable of contributory negligence. In this case it is qualified by a want of capability of contributory negligence, if the cars were not in motion when the plaintiff attempted to cross.

Verdict for the plaintiff for $10,000.

A rule for a new trial was granted which was discharged, the court making the following order: Rule for new trial discharged on plaintiff filing release of all above $7,500 within ten days, or on declining so to do, the rule for the new trial to be made absolute.

Pursuant to the order of court made, plaintiff, by his next friend, W. Henry Layer, released all of the verdict above $7,500 with like effect, as if the verdict had been for plaintiff in the sum of $7,500 when rendered.

Judgment was thereupon entered, whereupon the defendant took this writ, assigning for error the answer of the court to the above points.

Judgment affirmed.

David W. Sellers, for plaintiff in error. -- Neglect of duty cannot be averred, because the hurt child was incapable of contributory negligence. The fallacy in the instructions of the trial judge arose in supposing that care on the part of the defendant became negligence if a child did that which, in the case of an adult, would be reckless folly.

In cases where injury occurred to a child who passed in front of train the measure of duty is modified by the minority, but where the injury is in rear of engine, without actual knowledge being brought to the engineer of the special circumstances, minority is irrelevant: Railroad v. Morgan, 1 Norris, 139; Railroad v. Heil, 5 W.N.C., 91. No duty was owing to this boy: Railroad v. Schwindling, 12 Id., 349.

Passing beneath a car while all the men in charge of the train were at their places, and just as the train started, as the point refused conceded, left no duty on the railroad servants to this child. It was just as though the boy had been told to get off the car (Cauley v. Railroad, 14 Norris, 402), or had been riding by an implied permission of a brakeman: Woodbridge v. Railroad, 9 Out., 460.

Henry C. Terry, for defendant in error. -- The learned counsel for the defendant admitting that contributory negligence cannot be imputed to a child of tender years in an action by the child for a personal injury (North Penna. Co. v. Mahoney, 7 P.F.S., 187; Pittsburg & C. Pass. Railway Co. v. Caldwell, 24 Id., 421; Philadelphia &c. Railway Co. v. Hazard, 25 Id., 367), seeks to distinguish the present case by the propositions presented in his two points, the answers to which constitute the only assignments of error herein. These two points exhibit fairly the double theory upon which the case was tried below -- the one theory being that the train which caused the injury to the boy Layer was about to start; the other being that the train was in motion when Layer attempted to pass under the projecting coupling pole.

The case now under consideration is readily distinguished from all the cases cited, but is on all-fours with Rauch v. Hill, 7 Casey, 358; Penna. R.R. Co. v. Kelly, Id., 372.

The length to which the protection of the public at railroad crossings has been carried is well illustrated by the very recent case of Penna. R.R. Co. v. Coon, 17 W.N.C., 137, and by Phila. & Reading R.R. Co. v. Troutman, 11 W.N.C., 453.

If we regard the case of the Penna. R.R. Co. v. Lewis (29 P.F.S. 33) as authority, even a trespasser may have some rights which a railroad company is bound to respect; a fortiori as to a person who is on the roadway by permission. To hold otherwise would be but a poor comment on our civilization and upon the wisdom of this court:" R.R. Co. v. Horst, 16 W.N.C., 567; Id., v. James, 1 W.N.C., 68.

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

OPINION

Mr. CLARK, Justice

This action was brought by Clarence William Layer against the Philadelphia, Wilmington & Baltimore Railroad Company to recover damages for a personal injury received through the alleged negligence of the company. On the 30th December 1881, the plaintiff, a...