McMullen v. Pennsylvania R. , 132 Pa. 107 ( 1890 )

Opinion,

Mr. Justice Green:

On the trial of this case, the plaintiff examined but one witness to prove the fact and the circumstances of the accident. This is the account she gave of the occurrence:

“ Q. Please state just what you saw of this accident. A. When I saw the child he was lying on the flat of his back; his head towards the station house, and his feet towards me, Q. How was his body; on the track ? A. Right in the middle of the track his body was; and his head. Q. Between the tracks, between the rails, do you mean ? A. Yes, sir. Q. Crosswise ? A. Yes, sir; his feet towards me, and his legs hanging over. Q. How near was it to your house ? A.„ Right opposite the east window towards Dauphin street. Q. Which window was you looking out of? A. The last one towards Dauphin street. Q. What room of that house ? A. There was only one room of that house. Q. What happened after that ? A. I saw him before the cars moved at all. They were just slightly moving; just commencing in motion; and he of course didn’t make no effort to get up. I said to my stepmother, ‘ There’s a child on the track, and he’ll be run over,’ and she started out on Blair street and commenced to halloo, and I went out front. Q. That is out on Trenton avenue? A. Yes, sir. The first car went over him, and cut his foot right off. Then four car-wheels went over him before there was any assistance came.”

The witness had previously testified that there was a train of small coal-cars standing on the track, reaching nearly a square, the majority of which were full, and it was under these cars that the boy was lying on his back immediately before and at the time he was run over and killed. She also said the whole train was coupled together; that there was no opening between the cars, and the place of the accident was between two streets. There was no contradiction of these facts; on the contrary, they were confirmed by the defendant’s witnesses as to everything they saw, but none of them saw the actual collision. Several of the trainmen, who were examined, came to the spot immediately after the accident, and one of them lifted the boy out from underneath the car. Two of them testified to seeing a pan about half full of coal by the side of the boy, and one of them removed it.

The undisputed facts, therefore, are, that the boy, just before the accident, was lying on his back on a railroad track, crosswise the track, with his feet reaching over one of the rails, and his head between the rails. The train was just starting, and was moving slowly, so that it was stopped when four wheels had passed over the boy. He was lying underneath the cars, and there is no evidence that he was endeavoring to cross the track. As a matter of course he was not, and could not be, in such circumstances, in the exercise of any legal right. Railroad tracks are not made for persons young or old to lie down upon, in any circumstances ; much less so when cars are standing on the track. They are not intended for any such use, and any person who makes such use of a track is undoubtedly a trespasser.

The question is not an open one. Had this boy been an adult, as a matter of course he could not have recovered, both because of his own negligence and of his being a trespasser. The boy was ten years old, and therefore cannot be held accountable for his own negligence. But, as a clear trespasser, recovery is equally impossible, notwithstanding his youth, and this we have many times decided. In every one of the following cases we held there could be no recovery although the persons injured were children, upon the express ground that they were trespassers: Phila. etc. R. Co. v. Hummell, 44 Pa. 375; Flower v. Railroad Co., 69 Pa. 210; Duff v. Railroad Co. 91 Pa. 458; Cauley v. Railway Co., 95 Pa. 398, s. c. 98 Pa. 498; Hestonville Pass. Ry. Co. v. Connell, 88 Pa. 520; Moore v. Railroad Co., 99 Pa. 301; B. & O. R. Co. v. Schwindling, 101 Pa. 258. In several of them, the child was considerably younger than in this case. In not one of them was the trespass of the child so gross, so palpable, so conspicuous, as in this. The doctrine has been so elaborately discussed and so fully expounded and illustrated in several of the opinions of this Court, in the cases referred to, that it is entirely unnecessary to repeat the discussion here.

We are clearly of opinion that the defendant’s ninth point should have been affirmed, and a verdict for the defendant directed.

Judgment reversed.

Mr. Justice Sterrett and Mr. Justice Clark dissented.