Thompson v. Baltimore & O. R. Co.

• Decision Date: 04 June 1907
• Docket Number: 257,256
• Citation: 218 Pa. 444,67 A. 768
• Parties: Thompson v. Baltimore & Ohio Railroad Company, Appellant
• Court: Pennsylvania Supreme Court

67 A. 768

218 Pa. 444

Thompson v. Baltimore & Ohio Railroad Company, Appellant

Nos. 256, 257

Supreme Court of Pennsylvania

June 4, 1907

Argued January 11, 1907

Appeals, Nos. 256 and 257, Jan. T., 1906, by defendant, from judgment of C.P. No. 4, Phila. Co., March T., 1905, No 2,135, on verdict for plaintiffs in case of Henry E Thompson, by his father and next friend, Edward H. Thompson, and Edward H. Thompson, in his own right, v. Baltimore & Ohio Railroad Company. Reversed.

Trespass to recover damages for personal injuries to a boy eight years old. Before AUDENRIED, J.

The facts are stated in the opinion of the Supreme Court.

Verdict and judgment for plaintiffs for $2,500.

Error assigned was in refusing binding instructions for defendant.

The judgment is reversed and judgment is now entered for the defendant.

W. B. Linn, for appellant. -- The defendant was not liable: Gillis v. R.R. Co., 59 Pa. 129; Duff v. R.R. Co., 91 Pa. 458; Flower v. R.R. Co., 69 Pa. 210; R.R. Co. v. Lewis, 79 Pa. 33; Gramlich v. Wurst, 86 Pa. 74; Gillespie v. McGowan, 100 Pa. 144; B. & O.R.R. Co. v. Schwindling, 101 Pa. 258; P. & R.R.R. Co. v. Heil, 5 W.N.C. 91; Rodgers v. Lees, 140 Pa. 475.

The turntable decisions permitting recovery are both curious and anomalous; some assume that there is a standard of duty, as we understand them, requiring a railroad company to keep a turntable at its peril; others require the jury to decide whether a turntable is likely to prove "attractive" and "alluring" to children, permitting the jury to cast the defendant in damages upon an affirmative finding of that fact; still other courts frankly state that an exception to the general rule of liability governing ownership of property must and should be made in turntable cases: Walker v. R.R. Co., 53 S.E. Repr. 113.

Two cases decided in New Jersey a day apart, D., L. & W.R.R. Co. v. Reich, 61 N.J.L. 635 (40 A. Repr. 682), a case in the court of errors and appeals, and Turess v. R.R. Co., 61 N.J.L. 314 (40 A. Repr. 614), considered both sides of the matter and adopted the rule contended for at bar.

Chester N. Farr, Jr., with him John J. McDevitt, Jr., for appellees: -- The fact that the child is a trespasser is immaterial if the accessibility of the property is such that the attractive and dangerous object is situated so near the highway as to charge the owner with the duty of recognizing the fact that children may be tempted to play with it: Rachmel v. Clark, 205 Pa. 314; Duffy v. Sable Iron Works, 210 Pa. 326; Kreiner v. Straubmuller, 30 Pa.Super. 609; Hydraulic Works Co. v. Orr, 83 Pa. 332.

The injury to the plaintiff was the natural and probable consequence of the defendant's act.

The turntable decisions fully support appellee's position: Barrett v. Southern Pac. Co., 91 Cal. 296 (27 Pac. Repr. 666); R.R. Co. v. Stout, 84 U.S. 657.

Following is a list of other cases decided in the United States supporting a liability on the part of railroad companies for children injured by playing upon turntables: Alabama G.S. R. Co. v. Crocker, 131 Ala. 584 (31 So. Repr. 561); Ferguson v. Columbus, etc., Ry. Co., 77 Ga. 102; Chicago, etc., R. Co. v. Fox, 70 N.E. Repr. 81; Kansas Cent. Ry. Co. v. Fitzsimmons, 22 Kan. 686; Keffe v. Milwaukee, etc., R. Co., 21 Minn. 207; Twist v. Winona, etc., R. Co., 30 Minn. 164 (39 N.W. 402); Nagel v. Missouri Pac. Ry. Co., 75 Mo. 653; Chicago, etc., R. Co. v. Krayenbuhl, 65 Neb. 889 (91 N.W. 880); East Tennessee, etc., R. Co. v. Cargille, 105 Tenn. 628 (59 S.W. Repr. 141); Ft. Worth, etc., R. Co. v. Robertson, 14 L.R.A. 781; Gulf, etc., R. Co. v. Styron, 66 Tex. 421 (1 S.W. Repr. 161); San Antonio, etc., R. Co. v. Skidmore, 27 Tex. Civ. App. 329 (65 S.W. Repr. 215); Ilwaco Ry., etc., Co. v. Hedrick, 1 Wash. 446 (25 Pac. Repr. 335).

Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.

OPINION

MR. JUSTICE FELL:

The defendant maintained a large train yard, used for the shifting and storage of cars and the receipt and delivery of freight, in close proximity to a thickly populated section of the city of Philadelphia. Ten or twelve feet from an entrance to the yard from a public street there was a turntable which was not kept locked when not in use but was fastened by a brake that anyone could open. A high board fence surrounded the yard but in places it was broken and the gates were usually open. Little or no effort appears to have been made to exclude the public from the yard and at times it was used by persons residing in the vicinity as a playground. One of the plaintiffs, a boy not quite eight years of age, entered the yard at night through an open gateway, and while standing near the turntable, with which some children were at the time playing, was struck by a projecting bar which they used in turning it, and was thrown into the pit and caught between the wall and the turntable.

The principles that fix the relation between a landowner and a person entering on the land without permission were fully considered in Gillis v. Railroad Co., 59 Pa. 129, a case in which the plaintiff was injured by the breaking down of a station platform on which he was standing, from mere curiosity, to witness the approach of a train. It was there held that the permissive use of the platform by persons not having business with the company, imposed on it no liability for defects in construction, and that a person using the private property of another, by permission or sufferance, takes upon himself the risks incident to it. It was said in the opinion by SHARSWOOD, J.: "It will appear on an examination of the interesting and elaborate discussions in the English courts of the question whether an action could be supported by such trespasser for personal harm occasioned by the spring-gun, mantrap, or dog-spike, set on the grounds of the defendant, in which it was determined that where there was no proper warning given, such an action well lies; that it rested mainly on the ground that a man cannot lawfully do indirectly that which it is unlawful for him to do directly. He cannot shoot or maim or set a ferocious dog upon a mere trespasser. He shall not there place a concealed machine where it will be likely to do the same thing, or let such a dog loose in his grounds without warning: Deane v. Clayton, 7 Taunt. 489; Ilott v. Wilkes, 3 B. & Ald. 304; Bird v. Holbrook, 4 Bing. 628. It is, however, equally well settled that the owner of property is not liable to a trespasser, or to one who is on it by mere permission or sufferance, for negligence of himself or servants or for that which would be a public nuisance if it were in a public street or common where all persons have a legal right to be without question as to their purpose or business."

In Gramlich v. Wurst, 86 Pa. 74, a contractor, who was in exclusive possession of land for the purpose of carrying out his contract, had caused an excavation to be made and had left it unguarded at night. A person crossing the land fell into the excavation and was killed. In the opinion denying the right to recover it was said: "The law fully recognizes the right of him, who, having dominion of the soil, without malice does a lawful act on his own premises and leaves the consequences of an act thereby happening where they belong, upon him who has wandered out of his way, though he may have been guilty of no negligence in the ordinary acceptation of the term." In Gillespie v. McGowan, 100 Pa. 144, a child under eight years of age was drowned in an abandoned well, eighty feet from a city highway, in an uninclosed lot which was a place of resort in hot weather. The instruction to the jury that "The true principle which must be applied to a case of this kind is this: the owner of premises in the neighborhood of a populous city, and opening on a public highway, must so use them as to protect those who stray upon them," was expressly disapproved and the judgment for the plaintiff was reversed. In Baltimore & Ohio Railroad Co. v. Schwindling, 101 Pa. 258, a boy under six years of age went, for his own amusement, on the platform of a railroad station to observe an approaching train and was struck by an iron step which was bent and projected a few inches from the car. A judgment for the plaintiff was reversed on the ground that the company owed him no duty of protection under the circumstances. This principle has been applied in a variety of cases of trespass by children. In Rodgers v. Lees, 140 Pa. 475, it was applied in a case where a child took hold of a chain which was a part of a hoisting apparatus and was over a sidewalk outside of the building line; in Moore v. Railroad Co., 99 Pa. 301, where a boy was walking along the tracks of a railroad on the outer ends of the sleepers and was injured by a passing train; in Oil City, etc., Bridge Co. v. Jackson, 114 Pa. 321, where a boy in crossing a bridge walked on a gas pipe five inches in diameter and fell through an opening in the floor.

Of Hydraulic Works Co. v. Orr, 83 Pa. 332, relied on by the plaintiffs, it has often been said that it is authority for its own facts and, as far as it appears to sanction the doctrine that a child cannot be treated as a trespasser, it has been expressly overruled: see Gillespie v McGowan, 100 Pa. 144, and Rodgers v. Lees, 140 Pa. 475. In the first of these cases it was said: "In Hydraulic Works Co. v. Orr, there was a recklessness that may be said to partake of the nature of wantonness and it is only upon this principle that judgment can be logically sustained." In Duffy v. Sable Iron Works, 210 Pa. 326, an open vat, into which hot tar and grease were run, had been placed in an open space so near the line of the street that a child might unconsciously walk into it. In Rachmel v. Clark, 205 Pa. 314, the...