Smith v. Philadelphia & Reading Ry. Co. , 274 Pa. 97 ( 1922 )

Opinion by

Me. Justice Frazer,

Adeline Smith, a minor, and James Smith, her father, sued to recover damages for personal injuries sustained by the child, the result of the sudden starting of freight cars which had been standing on defendant’s tracks at a permissive crossing and between which she was attempting to pass. The case was submitted to the jury, a verdict rendered for each plaintiff and defendant appealed. The sole question for our consideration is whether defendant owed a duty to plaintiff which it failed to perform.

The accident happened on what would be a crossing of Eighty-first Street, in the City of Philadelphia, if the street were opened through. It is not seriously disputed that a foot path leads to and across the tracks which has been used by school children, workmen and others for a number of years, leading from the end of the opened portion of Eighty-first Street across defendant’s tracks and thence at an angle across vacant property to the first improved street running parallel with the railroad. Plaintiff, who at the time was between eight and nine years of age, was returning, with a number of other children, from school and, in accordance with their usual custom, followed the path leading to the crossing. Finding one of the tracks occupied by a standing freight train of considerable length, with the engine unattached and some distance from the cars, the children proceeded to cross by passing under the coupling between two cars and all but plaintiff reached the opposite side in safety. As the child was passing between the cars the engine backed against the train with considerable force, throwing her to the roadbed under the cars, and immediately moved forward, the wheel of a car passing over and severing her right hand. There is evidence that at least two cars had been standing at this point for two days previous to the accident and that no trainmen were at the crossing at the time the train was moved. Witnesses testified that no warning of an intention to move the cars was given until after the coupling had been made and it further appears that those in charge of the train were not aware that an accident had happened until they arrived at their destination that evening.

Under the above evidence it cannot be said as matter of law that defendant owed no duty to the minor plaintiff. The latter was not a trespasser in using the crossing and defendant in permitting its use by pedestrians became bound to use reasonable precautions to avoid injuring such persons: Lodge v. P. & L. E. R. R., 243 Pa. 10, 13. If an adult on finding the tracks blocked by a standing train had undertaken to cross as this child did he might properly be held guilty of contributory negligence; the same strict rule, however, cannot be applied to plaintiff who was between eight and nine years of age. Her responsibility depended upon her capacity to understand and guard against danger incident to her acts, which question was carefully submitted to the jury. Inasmuch as defendant was aware or bound to know that the crossing was used daily by school children, it was for the jury to say whether it was not obliged to anticipate children of plaintiff’s age might thoughtlessly endeavor to cross between or under the standing cars, in which case it1 would become its duty before attempting to move the cars after blocking the crossing to use reasonable precaution to ascertain whether there were children in a position of danger: Counizarri v. P. & R. Ry., 248 Pa. 474; Lodge v. P. & L. E. R. R. supra; Francis v. B. & O. R. R., 247 Pa. 425. In the present case no warning was given to indicate the train was about to be moved.

The judgment is affirmed.