Public Service Ry. Co. v. Wursthorn

• Decision Date: 30 January 1922
• Docket Number: 2716.
• Citation: 278 F. 408
• Parties: PUBLIC SERVICE RY. CO. v. WURSTHORN et al.
• Court: U.S. Court of Appeals — Third Circuit

278 F. 408

PUBLIC SERVICE RY. CO. v. WURSTHORN et al.

No. 2716.

United States Court of Appeals, Third Circuit.

January 30, 1922

Lefferts S. Hoffman, Leonard J. Tynan, and Joseph Coult, Jr., all of Newark, N.J., for plaintiff in error.

Edwin F. Smith, of Jersey City, N.J. (Thomas G. Haight, of Jersey City, N.J., of counsel), for defendants in error.

Before WOOLLEY and DAVIS, Circuit Judges, and ORR, District Judge.

WOOLLEY Circuit Judge.

This action was brought by Harold Wursthorn, an infant of tender years, by his next friend, to recover damages for personal injuries, and by Curt Wursthorn to recover for loss of his son's services, occasioned by negligence of the Public Service Railway Company. The plaintiffs had verdicts, and the defendant sued out this writ of error.

Speaking of the parties as they stood in the court below, the facts shortly stated, are these: The place of the accident is a large rectangular tract of land in Secaucas, New Jersey owned by the defendant, on which is a car barn, and many tracks used for the movement and storage of cars. The tract of land, situate in a thickly populated district, is bounded on one side by the Hackensack River and fenced on the other sides, with a gate at each of the several abutting streets through which persons, either with vehicles or as pedestrians, and whether on business or pleasure, enter at will passing over roads and well traveled paths and across and along the tracks. Although at several places on the grounds there are signs reading 'Private Property, No Trespassing,' the public generally-- adults and children alike--had, for twenty years prior to the accident, crossed and recrossed the premises in a manner from which invitation by the defendant might be implied.

On the tract of land was a ball ground used on occasions by semiprofessional ball teams and in the intervals by children. A large number of children in the neighborhood had used the property generally as a playground, not confining themselves to the ball field but playing on derricks and on cars which had been stored on tracks, building tents and camps, using the premises as a way to the river for swimming and fishing and-- as bearing directly on the accident in this case-- playing with car wheels left on the tracks by rolling them back and forth.

For several weeks prior to the accident the defendant had kept a car truck--made of four car wheels, each pair being connected by an axle and the whole joined together by timbers-- standing on a track alongside the car barn at or near a place where the grade descended in both directions. Having neither a brake nor anything else to hold it in place, children, during that time, played with the truck by moving it along the tracks and jumping on and off, in the presence of employees of the defendant and without hindrance by them.

On the day in question several boys, twelve or thirteen years of age, pushed the truck on a slight downward incline toward the river. In its transit it became stalled by the dirt of a road crossing. It was here that the infant plaintiff, then seven years of age, got upon the truck with another small boy for a ride. The larger boys succeeded finally in getting the truck past the crossing, when, gathering speed rapidly on an abruptly descending grade, the larger boys let go and the truck dashed down the track and into a car standing at the bottom of the grade, causing the infant plaintiff the serious injuries of which he complains in this action.

At the close of the trial the defendant moved for a directed verdict on the ground that the infant plaintiff was a trespasser to whom it owed no duty of care save to refrain from willful injury. Refusing the motion, the court submitted the case on the law of implied invitation based on the doctrine of attractive nuisances and held the defendant to a degree of care such as an ordinarily prudent person would exercise to prevent injury to a child of little discretion who had been enticed upon his premises by objects which were alluring and dangerous. The law which the defendant moved the court to apply was the common law of the State of New Jersey as interpreted by it in the case of Friedman v. Snare & Triest Co., 71 N.J.Law, 605, 61 A. 401, 70 L.R.A. 147, 108 Am.St.Rep. 764, 2 Ann.Cas. 497 (1905). The law which the court charged was the law applicable by a federal court to a case arising in the State of New Jersey as found by this court in Snare & Triest Co. v. Friedman, 169 F. 1, 94 C.C.A. 369, 40 L.R.A. (N.S.) 367 (1909). This difference in the law enforcible in New Jersey as regarded by the defendant and as found by this court arose out of the fact that there were two cases of Snare & Triest Co. v. Friedman brought and tried in different courts. At the trial in the state court, the defendant here contends, the doctrine of the turntable cases (Railroad Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745) was invoked and repudiated, while at the trial in the federal court, it is conceded, the same doctrine was invoked and sustained.

This court, at the federal trial of Snare & Triest, having before it the record of the state trial of Snare & Triest and the state authorities on which that decision was rested, found there was no such settled rule of law (repudiating the doctrine of the turntable cases) established by the decisions of the New Jersey tribunal of last resort as would be binding upon the United States Circuit Court or that would relieve it from the duty of forming an independent judgment as to what the unwritten or common law of New Jersey required of the defendant in the premises. It is important here to note that no statute of the state was involved. This court arrived at the conclusion that the law announced by the Supreme Court of the United States in Railroad Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745, and Union Pacific R. Co. v. McDonald, 152 U.S. 262, 14 Sup.Ct. 619, 38 L.Ed. 434, commonly known as the doctrine of the turntable cases, was the law applicable to the case. The federal case of Snare & Triest is so close to the instant case that the law of that case is applicable to this case, unless the defendant should prevail in its request that we depart from Snare & Triest, decided on the then unsettled law in New Jersey, and follow the law of New Jersey which, it urges, has since become firmly settled, by three decisions repudiating the doctrine; one by a trial court of New Jersey, another by the court of last resort of New Jersey, and still another by the Supreme Court of the United States. On the question thus raised we shall not review Snare & Triest Co. v. Friedman, 169 F. 1, 94 C.C.A. 369, 40 L.R.A. (N.S.) 367, but shall accept the judgment of this court in that case and the reasoning that moved it to its judgment as the starting point for the new phase of the law now invoked.

Assuming it to be true that at the time of the decision of this court in Snare & Triest Co. v. Friedman the law of New Jersey with respect to the duty which one owes a child invited upon his premises was not settled, and, therefore, warranted this court, in its concurrent jurisdiction with the state courts, in exercising an independent judgment of what that law was, the one question now before us is whether, since that decision, the law has by a settled course of state decisions become established as a rule of property and conduct which it would be our duty to follow. Burgess v. Seligman, 107 U.S. 20, 2 Sup.Ct. 10, 27 L.Ed. 359; Bucher v. Cheshire R. Co., 125 U.S. 555, 8 Sup.Ct. 974, 31 L.Ed. 795; Etheridge v. Sperry, 139 U.S. 266, 11 Sup.Ct. 565, 35 L.Ed. 171.

To prove that the law has become established, the defendant relies upon expressions by courts of New Jersey, such for instance as 'The rule that denies to a trespasser a duty on the part of others to observe care toward him is not changed by the fact that he is an infant. This principle was applied in the so-called 'turntable cases.' These expressions are found in the opinions in cases, which, on close investigation, turn out to be cases of trespass pure and simple, where no questions of implied invitation or license were involved. No one doubts that unless saved by circumstances, as by invitation or license, a child can be a trespasser equally with an adult.

The first of these cases is Sutton v. West Jersey & Seashore R. Co., 78 N.J.Law, 17, 73 A. 256, decided by the Supreme Court of New Jersey in 1909. In this case a boy crossing a meadow through which the electric railway of the defendant was constructed, came into contact with a charged third rail and was killed. The court, on demurrer, held the child a trespasser and entered judgment for the defendant. And properly so, we think. For there was nothing in the case that divested the child of the character of trespasser. There was no evidence that children frequented the premises or were likely to be attracted to the premises by alluring objects. In fact, there was no evidence that the owner had done anything to invite the child to the premises or anything to impose upon itself a greater duty or care than that to be exercised toward a trespasser whatever his age. The Sutton Case, having to do with a trespasser, not with one on the premises of another by his invitation, express or implied, has already been held by this court to contribute nothing toward settling the common law of New Jersey on the question under consideration. In Riedel v. West Jersey & Seashore R. Co., 177 F. 374, 101 C.C.A. 428, 28 L.R.A. (N.S.) 98, 21 Ann.Cas. 746, where 'the facts were practically the same ' as in the Sutton Case, this court, citing the Sutton Case with approval, very carefully distinguished the law of the Sutton Case and the Riedel Case from the turntable law of Railroad Company v. Stout, 17 Wall. 657, ...