Thompson v. Baltimore & Ohio Railroad

Opinion by

Me. 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 boardfence 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. & Aid. 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 walkinto it. In Rachmel v. Clark, 205 Pa. 314, the defendants had used for storage the sidewalk of a street in connection with an open paved space in front of their building, separated from the.street only by an imaginary line. The negligence was in placing on a public way, where all persons had a right to be, a slab of slate in such a position that the touch of a child’s hand would cause it to fall.

The fact that the person injured was a child makes no difference unless there was negligence. The plaintiff’s youth relieves him of the charge of contributory negligence but it does not give rise to an imputation of negligence on the part of the defendant. He was where he had no right to be, on the property of the defendant, which.it was using in a lawful manner for a lawful purpose in the conduct of its business. It owed him the duty not to injure him intentionally but it was under no duty actively to take care of him either by keeping him out of the yard or by protecting him after he had entered it from his own acts or the acts of others who, like him, had entered without permission. There was no negligence unless there was breach of duty. There was no breach of a duty owing an adult. An owner of land is not liable for its condition to an adult who enters without permission. Unless a different standard of duty is to be established as to a child, there was no liability in this case.

Whether an owner of land who makes changes on it in the course of its beneficial use, which tend to attract children and to expose them to danger, is under a duty to take special precautions for their safety, is a question on which there is a conflict of authority. That such a duty exists has been asserted in some jurisdictions and denied in others. The earlier cases on the subject followed Railroad Co. v. Stout, 84 U. S. 657, but the tendency of the later decisions is decidedly against the imposition of such a duty; some of the courts that adopted the ruling in Railroad Co. v. Stout, have since repudiated it and others have followed it with hesitation or have limited its application to a particular class of improvements.

The establishment of such a duty would create a restraint, which in some cases would amount to a prohibition, upon a mode of beneficial use of land, for - the protection of intruders and intermeddlers. It is difficult to see any ground upon which such a duty can be placed. An owner is not liable for leaving his land in its natural shape. Why should he be held liable for placing structures upon it which are harmless in themselves and are necessary for the lawful use he wishes to make of it ? It cannot be said that he invites or allures children because no such intention in fact exists, nor that he sets a trap for the innocent and un wary. The law does not impose a duty upon the landowner to take special precautions for a class of persons, a doctrine which, if carried to its logical conclusion, would, as was said in Gillespie v. McGowan, 100 Pa. 144, “ Charge the duty of the protection of children upon every member of the community except their parents.” In D., L. & W. Railroad Co. v. Reich, 61 N. J. L. 635, it Avas said by Gummere, J.: “ The viciousness of thfe reasoning which fixes the liability on the landoAvner because the child is attracted lies in the assumption that Avhat operates as a temptation to a person of immature mind is, in effect, an invitation. Such an assumption is unwarranted.”

If the standard of duty contended for is set up, it will be an exception to the general rule and a Avide and dangerous extension of the liability governing the ownership of property ; where it would logically end it is difficult to determine. As was suggested in Gillespie v. McGowan, 100 Pa. 144, it might make it “ the duty of the owner of a fruit tree to cut it down because a boy trespasser may possibly fall from its branches.” In the opinion in Turess v. Railroad Co., 61 N. J. Law, 314, it was said by Magie, C. J.: “ It is obvious that the principle on which the rule rests, if sound, must, be applicable more widely than merely to railroad companies and the turntables maintained by them. It would require a similar rule to be applied to all owners and occupiers of land in respect to any structure, machinery or implement maintained by them thereon, Avhich possesses a like attractiveness and furnishes a like temptation to young children. He Avho erects a tower capable of being climbed, and maintains thereon a windmill to pump water to his buildings; he who leaves his mowing machine or dangerous agricultural implements in his field after his day’s work; he who maintains a pond in which boys may swim in summer and on which they may skate in winter,— would seem to be amenable to this rule of duty.”

The doctrine of the so-called turntable cases has been disapproved in Walsh v. Railroad Co., 145 N. Y. 301; Walker’s Adm’r v. Railroad Co., 53 S. E. Repr. 113; Railroad Co. v. Reich, 61 N. J. Law, 635; Daniels v. Railroad Co., 154 Mass. 349; Frost v. Railroad Co., 64 N. H. 220; Paolino v. McKendall, 24 R. I. 432, 53 Atl. Repr. 268; Ryan v. Towar, 128 Mich. 463, 55 L. R. A. 310; Dobbins v. Railway Co., 91 Texas, 60; Ritz v. Wheeling, 45 W. Va. 262, and in many other cases. The doctrine is a sweeping innovation on the settled common-law rule that a landowner is not liable for the condition of his premises to one who enters them without permission. We are of opinion that it is not sound in principle and that it cannot be sustained.

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