Tarlucki v. W. Jersey & S. R. Co.

• Decision Date: 02 December 1910
• Parties: TARLUCKI v. WEST JERSEY & S. R. CO.
• Court: New Jersey Supreme Court

78 A. 149

80 N.J.L. 688

TARLUCKI

v. WEST JERSEY & S. R. CO.

Supreme Court of New Jersey.

Dec. 2, 1910.

Syllabus by the Court.

Action by Edmund Tarlucki against the West Jersey & Seashore Railroad Company. Demurrer to declaration sustained.

Argued June term, 1910, before GUMMERE, C. J., and TRENCHARD and MINTURN, JJ.

Wescott & Wescott, for plaintiff.

George A. Bourgeois, for defendant.

MINTURN, J. The demurrer filed by the defendant in this case alleges the right of the plaintiff to recover upon the following state of facts: On the 27th day of May, 1908, the defendant maintained and operated an electric third rail railroad, which was protected and guarded from contact with the public by a fence. There was at that time "an ancient public way running at right angles to the tracks, which led up to and across the same, which roadway the defendant allowed to remain unfenced and unguarded, so that the plaintiff, eight years of age, who had no knowledge of the danger incident to the crossing, walked from the roadway upon the railroad right of way, and instead of pursuing a direct course across the tracks turned, as the declaration alleges, "along the side of its northerly track" upon "a well-defined and worn footway in a diagonal direction, for the purpose of reaching said footway, and in so doing stepped against and came in contact with said third rail," thereby suffering the damage of which he complains. Our difficulty in sustaining this declaration is that upon its face it shows that the injury complained of did not happen upon the public roadway, but upon the right of way of the defendant, which fact constituted the plaintiff at the time a trespasser, a status which imposed upon this defendant, upon well-settled principles, the negative duty only of refraining from willfully injuring him.

The latest pronouncement upon this subject by this court was in Sutton v. West Jersey & Seashore R. R. Co., 73 Atl. 256, where the present Chief Justice, speaking for the court, said: "The rule is well settled in this state that a landowner is under no legal obligation to a trespasser to keep his premises in a nonhazardous state; that, as to him, the landowner's sole duty is to abstain from acts willfully injurious. And this rule is applicable whether the trespasser is an infant or an adult"—citing D., L. & W. R. R. v. Reich, 61 N. J. Law, 635, 40 Atl. 682, 41 L. R. A. 831, 68 Am. St. Rep. 727.

There is nothing of a substantial character contained in this...