Woodbridge v. R. R. Co.

• Decision Date: 06 October 1884
• Citation: 105 Pa. 460
• Court: Pennsylvania Supreme Court
• Parties: Woodbridge <I>versus</I> The Delaware, Lackawanna and Western Railroad Company.

105 Pa. 460

Woodbridge versus The Delaware, Lackawanna and Western Railroad Company.

Supreme Court of Pennsylvania.

February 25, 1884.

October 6, 1884.

February 25, 1884.

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

ERROR to the Court of Common Pleas of Lackawanna county: Of January Term, 1884, No. 92 C. Smith, for plaintiffs in error.—There was no evidence to show contributory negligence on the part of the plaintiffs. The evidence showed more than ordinary care by the mother on the morning of the injury. The defendant's servants were guilty of negligence in omitting to prevent boys of tender age from riding on their coal train and inducing other boys to join them; also in omitting to see the plaintiff's child approach and prevent his getting on the car. The original cause of the inducement for Theodore to climb on the car was the brakeman's act of permitting the boys to ride on the train, and the defendants are responsible for this act; Street R. R. Co. v. Boudrou, 2 Am. & Eng. R. Cas., 35; R. R. Co. v. Mahoney, 57 Pa. St., 189; Railroad Co. v. Snyder, 18 Ohio, 414; Illidge v. Goodwin, 5 C. & P., 190; Lynch v. Nurdin, 1 Q. B., 29; R. R. Co. v. Long, 75 Pa., 257; R. R. Co. v. Pearson, 72 Pa., 169; R. R. Co. v. Lewis, 79 Pa., 33; Hydraulic Works v. Orr, 2 Norris, 332; Phil. P. R. R. Co. v. Henrice, 92 Pa., 431; Mangam v. Brooklyn R. R. Co., 38 N. Y., 455. Since an infant cannot be held to the same degree of care as an adult, either in apprehending or avoiding danger, it follows that the defendant's duty was relatively increased — even to an extent sufficient to impose a duty where none would exist in case of an adult: Phila. R. R. Co. v. Spearen, 47 Pa. St., 304; Baltimore & Ohio R. R. Co. v. Schwindling, 5 Out., 258. A railroad company must be held to the exercise of ordinary care, in respect to an infant who is a trespasser: Phila. & R. R. R. Co. v. Hummell, 44 Pa. St., 375.

Edward N. Willard and Everett Warren, for defendants in error.—The negligence of parents in allowing children to wander unattended upon a railroad track, is contributory negligence, which will defeat an action by the parent for loss of service, except where the defendant's act is willful: Pierce on Railroads, p. 338, and cases there cited. Nagle v. R. R. Co., 7 Norris, 35; Phila. & R. R. R. Co. v. Long, 25 P. F. S., 257; Penn. R. R. Co. v. James, 32 P. F. S., 194; Cauley v. Pittsburgh, C. & St. L. R. R. Co., 95 Pa. St., 398. A child six years old may be a trespasser: Gillespie v. McGowan, 4 Out., 144; Smith v. Hestonville Pass. R. Co., 11 Norris, 450; Flower v. Penn. R. R. Co., 19 P. F. S., 213; Kirby v. Penna. R. R. Co., 26 P. F. S., 506; Duff v. Alleghany Valley R. R. Co., 10 Nor., 458; Cauley v. P. C. & St. L. Railway Co., 95 Pa. St., 398; Baltimore & Ohio R. R. Co. v. Schwindling, 5 Out., 258. The company, defendant, was not guilty of such negligence as to entitle the plaintiffs to a recovery under the circumstances. The fact that the trespasser was a boy, is not material. The company owed him no greater duty than if he had been an adult: Moore v. Penna. R. R. Co., 3 Out., 301; Baltimore & Ohio R. R. Co. v. Schwindling, 5 Out., 258. The boy being clearly a trespasser, or, at best, a mere licensee upon the company's property, the defendant company's sole duty towards him was to abstain from wanton or intentional injury. This is the settled law, as laid down in the following cases: Gillis v. Penna. Railroad, 9 P. F. S., 141; Gillespie v. McGowan, 4 Out., 144; Hestonville Pass. Railroad Co. v. Connell, 7 Norris, 520; Cauley v. Pitts., C. & St L. Railroad Co., 2 Out., 498; Hestonville Pass. Railroad Co. v. Kelley, 6 Out., 115; Maenner v. Carroll, 46 Md., 193; Gautret v. Egerton, L. R. 2 C. P., 371, and cases there cited; Hounsell v. Smyth, 7 C. B., N. S., 731. A railroad company is not required to keep a guard on its cars to prevent young children from getting upon or under them, nor to prevent young children from coming on the car while passing: Pierce on Railroads, 336, and cases there cited.

Mr. Justice STERRETT delivered the opinion of the Court, October 6, 1884.

If there were no testimony from which the jury would have been justified in finding that the unfortunate injury which resulted in the death of plaintiffs' child was caused by the negligence of defendant company's employees, it must be conceded the judgment of nonsuit was rightly entered, and should be sustained; but, in view of the evidence as to the tender years of the child, and the care that was exercised by his mother to keep him out of danger on the morning of the accident, it cannot, in my judgment, be sustained on any other ground. There is nothing in the testimony to warrant the court in holding, as matter of law, that there could be no recovery either on the ground that the child's parents were chargeable with contributory negligence, or that he, himself, was a trespasser in the sense that one of maturer years would have been under like circumstances. If there was...