Riedel v. West Jersey & S.R. Co.

• Decision Date: 21 February 1910
• Docket Number: 68 (1,274).
• Citation: 177 F. 374
• Parties: RIEDEL et al. v. WEST JERSEY & S.R. CO.
• Court: U.S. Court of Appeals — Third Circuit

177 F. 374

RIEDEL et al. v. WEST JERSEY & S.R. CO.

No. 68 (1,274).

United States Court of Appeals, Third Circuit.

February 21, 1910

Evans and Forster, for plaintiffs in error.

John Hampton Barnes, for defendant in error.

Before GRAY, BUFFINGTON, and LANNING, Circuit Judges.

GRAY Circuit Judge.

The writ of error in this case brings up from the court below a record disclosing the following facts:

Louis Riedel, who by his father and next friend brought suit in the court below, was a boy between seven and eight years of age and was permanently injured by falling across the electric third rail of the West Jersey & Seashore Railroad Company, the defendant.

The day the injury occurred, he had been taken by his parents from Philadelphia, where they resided, to spend the day with some friends, the yard of whose house abutted against the line of the right of way of said defendant company, just above the village of Westfield, N.J. The right of way of the defendant company near this point, as well as elsewhere, was fenced with a three-strand wire fence, about four feet high, but at the premises in question there was a picket fence dividing the same from the right of way of the defendant company about five feet in height, which served as part of the line fence of said company, the wire fence coming up to and ending at each end of this picket fence. In this picket fence was a gate opening onto the defendant's right of way.

The defendant company was originally chartered as a steam railroad, but, by the revision of the act of the Legislature of New Jersey concerning railroads, in 1903, the power was conferred upon it to substitute for steam any other motive power which it might deem best adapted to the economical operation of its railroad, and to use such devices and appliances for conducting and distributing power as might be required. Accordingly, at the time of the accident, and for a considerable period prior thereto, the company had installed an electric system for the operation of its road, the electricity being conveyed from the power house through what is known as a 'third rail.' This rail was situated between the two tracks upon which the cars traveled, but was in close proximity to the rail on one side and ran parallel therewith. It was in all respects like the rail which carried the cars and was without cover or protection of any kind, so that, to a casual observer, there was nothing to distinguish it in appearance from the other rails. The current of electricity carried by this third rail was normally 675 volts, a charge sufficient to seriously injure or even destroy the life of any one coming in contact therewith. This road ran entirely across the state of New Jersey, from Camden to Atlantic City, a distance of some 60 miles. At stations and road crossings, the third rail was covered, so that persons using said stations and crossings were protected therefrom; but, with these exceptions, throughout the entire length of the road, the third rail was uncovered.

On the day of the accident, the plaintiff, Louis Riedel, with two companions of about the same age, a boy and a girl, were playing together in the back part of the lot above described. What then occurred is thus stated:

'Looking through the fence, they saw and were attracted by some flowers growing on the other side of the rails, and went to the gate to open it. Finding it fastened, the plaintiff's companion, as he testified, 'put a nail or a piece of wood, then pulled it out again, and it came open.' Having thus unbolted the gate, the two started to pluck the flowers. The first boy crossed the tracks in safety, but the plaintiff fell, apparently having tripped over something, and, coming in contact with the third rail, was shocked and burned by the electric current, sustaining severe and permanent injuries.'

Upon these facts, the court directed a verdict for the defendant, and upon exceptions to this charge of the court, the case comes before us upon two assignments, alleging error in this action of the court.

The facts are simple and undisputed, and the single question for our determination is, whether or not the defendant company owed a duty to the plaintiff to use such care in guarding and protecting this third rail as would have prevented the injury which happened to him, or, as more generally put by the defendant-- is a property owner, who maintains on his premises a dangerous agency in the proper exercise and use of his premises, responsible to a child trespassing thereon who is hurt by contact with such agency, if there is nothing about it to entice or attract him, and where the owner has done nothing to invite such trespasser on his premises, or has any reason to expect that he will come upon them?

The exceeding danger presented by the 'third rail,' which has recently come into use in the operation of important electric roads, when such rail is uncovered and exposed, justly challenges our attention. The character, however, of this dangerous and death-dealing agency must not be allowed to obscure the well-settled principles by which the duty of the owner of premises, upon which such dangerous agency or instrumentality is situated, with respect thereto, is to be determined.

The plaintiff was a trespasser, and it must therefore appear, in order that he may recover from the defendant, that his case is an exception to the ordinary and well-settled rule, that the owner of premises owes no duty to a trespasser, whether an infant or adult, to keep such premises in a nonhazardous condition, or to protect him against concealed dangers lurking thereon. The contention of plaintiff's counsel urged with much...