Cauley v. Pittsburgh, Cincinnati & St. Louis Railway Co.

Mr. Justice Paxson

delivered the opinion of the court,

It was said by Mr. Justice Strong in Philadelphia & Reading Railroad Company v. Hummell, 8 Wright, at page 278 : “ It is time it should be understood in this state that the use of a railroad track, cutting or embankment is exclusive of the public everywhere except where a way crosses it.” The same doctrine has been reiterated again and again in subsequent cases. In Mulherin v. Delaware, Lackawanna & Western Railroad Company, 31 P. F. Smith 366, it was said: “Except at crossings, where the public have a right of way, a man who steps his foot upon a railroad track does so at his peril. The company has not only right of way, but it is exclusive at all times and for all purposes,” and Railroad v. Norton, 12 Harris 465, was cited in support of this rule. Many other cases might be referred to were it necessary. We live in an age of steam and of rapid development. The world demands quick transportation. Increased speed necessarily involves increased danger. Holding as we do such corporations to a strict responsibility for negligence, it is our duty to give them a clear track. This rule is not only proper in itself but is necessary for the preservation of life. Its propriety is no longer a subject for discussion.

It ought also to be equally well understood that parents who permit their children to trespass’upon the track of a railroad are guilty of negligence. It is not only gross but culpable negligence, as it imperils the lives of the children so trespassing, as also the lives of the travelling public. A similar view was taken in Railroad Company v. Hummell, supra, where it was said that children “ cannot be upon the railroad without a culpable violation of duty by their parents or guardians.” It is very clear, therefore, that as to the suit brought by John Cauley in his own right for the injury to his son, he cannot recover. The child was upon the car where he ought not to have been by the negligence and want of care of his father. Ror does the offer of evidence ruled out by the court below tend to rebut the presumption of negligence on the part of his parents. On the contrary, it strengthens it. Assuming the offer to be true, it shows that the child was not only playing upon the car on the occasion when he received the injui-y, but that he had done so before. The location was near his parent’s house, probably in sight, as his mother saw the accident and called to the conductor. That the child was there without his father’s consent is not to the purpose. “ To suffer a child to wander upon the street has the sense of permit. If such permission or sufferance exist it is negligence:” Philadelphia & Reading Railroad Co. v. Long, 25 P. F. Smith 265. I apprehend few parents would consent to a child’s playing upon a railroad track or any other known place of danger. But many parents might neglect the precautions necessary to prevent it. In some instances it would require more than merely to caution a child against it. Positive prohibition followed by punishment for violation may sometimes be necessary. It too often happens that boys are allowed to wander about the streets and trespass upon railroad tracks with very little care or supervision of their parents. Whilst so engaged injuries of this character are likely to happen. Much as they are to be deplored and however much our sympathies may be aroused for one so injured, it would be unjust to compel a corporation or individual to make a pecuniary compensation for such accident, when it was the result of the lawful pursuit of a lawful business by such corporation or individual. Aside from this the defendant company owed the father of this child no duty. The father owed his child the duty of protection. The company did not. The evidence was properly rejected.

In regard to the suit brought for the child by his father as his next friend, it is sufficient to say that the child being unlawfully upon the car, the defendant company owed it no duty and is not liable for the injury. This was the principle upon which Railroad Company v. Hummell was ruled. In the recent case of Duff v. Allegheny Valley Railroad Co., 10 Norris 458, it appeared that a conductor of a train, in violation of the rules of the company, permitted a boy to sell papers on the train. By the alleged negligence of the company the boy was killed. The right of his mother to recover was denied upon the ground that the boy was a mere trespasser and the company owed him no duty. It is useless to multiply authorities. The rule is well settled and is sustained by reason and authority. Moreover, it is demanded by humanity. There are many unfeeling parents who not only neglect but maltreat their children. It would be cruel to such children to lay down a rule which would make it an object for unprincipled parents to expose them to injury and death upon a railroad track.

Upon the merits these judgments ought to be affirmed. But we notice that one writ of error has been taken to the .two cases. There is no authority for this. It is a practice that we will not encourage. Besides the Commonwealth loses the tax upon one writ. There should have been a separate writ of error to bring up each case. We have expressed our opinion upon the merits to avoid having our time occupied with the cases again. But we will not enter judgment.

Writ quashed.

Justices Trunkey and Sterrett concurred in quashing the writ, but not in this opinion, to which they dissented.