Malloy v. Pennsylvania Railroad

Opinion by

Mr. Justice Bell,

The City of Jeannette and the Pennsylvania Railroad appealed from a judgment entered on a verdict against them jointly in favor of the plaintiffs. The important question involved is whether the evidence was sufficient to establish a prima facie case of negligence against either or both of them and that such negligence was the proximate cause of the accident. The facts pertaining to the cause and the exact place of the accident are very meager. Viewed in the light of the testimony most favorable to plaintiffs and every reasonable inference arising therefrom, the facts are well stated in the opinion of the lower Court as follows:

“On September 11, 1952, the minor was found fatally injured at the foot of a railroad embankment in the City of Jeannette in this County. He was lying close to the foot of the embankment and a few feet away from the near rail of one of the four tracks of the railroad company. The right of way of the railroad company extends in a general easterly-westerly direction. South First Street in the City of Jeannette terminates at the southern side of the railroad cut at the point in question.

“The railroad cut at the point where South First Street meets the right of way of the railroad company is 57 feet in depth.

“On September 10,1952, the minor, with his parents, had come to the City of Jeannette for a visit with certain of their relatives, and Michael T. Malloy, who was then ten years of age, on the afternoon of September 11, 1952, shortly after 5:30 p.m., left the home of his relatives with his cousin, Maureen Malloy, age sixteen, to play out doors. The two cousins, with several friends, rode bicycles up and down South First Street for some time before deciding to sit and talk in the church yard located approximately one block from the terminus of South First Street near the railroad property. Michael Malloy borrowed a bicycle from a boy named Bobby Hahn, one of the neighborhood children who was playing with him at the time. Maureen testifled that Michael rode the bicycle on South First Street up to a barricade, turned around and back to the church yard at least five or six times.

“At the northern terminus of South First Street there is erected a wooden barricade extending in an east-west direction a distance of 18.84 feet. The barricade is formed of four upright posts and two plank cross pieces. The upright posts are 5 by 7 inches and the planks or cross pieces are 2 by 8 inches. These planks are nailed to the upright posts. The top of the ivesterly post is about 3.8 feet from the level of the ground; the next post in an easterly direction from there is 3.2 feet from the level of the ground; the third post from the western end of the barricade is 2.65 feet from the level of the ground, and the most easterly post is 3.15 feet in height.

“Maureen Malloy stated that she saw Michael go to the barricade on each occasion, Avith the exception of the last time he rode the bicycle north on South First Street, when she only saiv him riding as far as Magee Avenue, which is located approximately 122 feet south of the barricade. After a period of three or four minutes had elapsed and Michael failed to return, Maureen, accompanied by her two companions, Bobby Hahn and Joel Martin, walked on South First Street to the barricade in search of the missing Michael. These young people found the bicycle Michael had been riding lying near the barricade. Maureen and her two friends walked around the north side of the barricade and looked down the railroad cut and saw Michael lying at the bottom of thé but, directly below the barricade. Maureen also testified that she noticed a mark about a foot or so in length extending down the embankment as she looked down and saw her cousin lying at the bottom of the cut.

“One Joseph Gurksnis, a resident of the City of Jeannette, testified that about 5:30 p.m. the day of the accident he was walking across the Second Street Bridge, which is located about one block west of South First Street. Mr. Gurknis testified that looking eastward from the bridge he could see the barricade at the end of South First Street; that he looked at it and as he looked, he saw an object ^* rolling or falling, stirring up a cloud of dust, down the embankment directly below the barricade located on South First Street. When he first saw the object, he located it as being 10 or 12 feet below the barricade rolling down the railroad embankment and that it fell down into the cut and landed right on a pathway down there near the tracks. The witness then ran across the bridge and saw that the object was a body of a boy lying at the foot of the embankment immediately below the barricade. He summoned help from a nearby store and walked up the cut with a police officer where they found the body of the minor, Michael T. Malloy, on the pathway between the foot of the embankment and the railroad tracks. He testified that the body was lying at a point directly below the barricade located on South First Street.

“A Miss Coletta McCartney testified that she lives in a house located at the corner of Magee Avenue and South First Street, which house extends in its length along South First Street. At the time of the accident, Miss McCartney was sitting on the porch of her home with her aged mother at the westerly side of the house. She testified that this section of South First Street, between the barricade and Magee Avenue, was used as a playground by children.- She further testified that- on the afternoon of this occurrence she noticed a -number of children riding bicycles on South First Street between the barricade and Magee Avenue. She saw Michael Malloy and noticed him particularly because he was the smallest of the children. She saw him riding back and forth from the barricade to Magee Avenue at least six or seven times. The last time she saw him, he was riding toward the barricade at the end of South First Street. She didn’t see him again and she estimated that it was about five minutes from that time until she saw the other children running up the street screaming that someone had fallen down over the cliff.

“There is an abundance of testimony to the effect that the children from the neighborhood used South First Street between Magee Avenue and the railroad cut as a playground. They rode their bicycles, played ball and the usual childhood games.

“Both of the defendants deny erecting the barricade and each defendant contends that the barricade is not on its property.

“The jury returned a verdict in favor of the plaintiffs and against both defendants.”

No one saw or knows how the tragic accident happened. It is important to note that there was no evidence that the barricade was broken or defective or inadequate ; nor was there any proof that the present barrier should have been extended or that a barrier should have been erected at any other spot. It is apparently necessary to restate the principles of law which are applicable to the facts in the instant case.

In Finnin v. Neubert, 378 Pa. 40, 105 A. 2d 77, the Court said (page 43) : “Deep sympathy for this boy. does not justify a Court’s finding negligence unless the evidence justifies it. We said in Brusis v. Henkels, 376 Pa. 226, 102 A. 2d 146, “‘. . . ‘The mere happening of an accident is no evidence of negligence . . . Plaintiff has the two-fold burden of proving that the defendant was negligent and that his negligence was the proximate cause of the accident:’^* . . : Lanni v. P. R.R. Co., 371 Pa. 106, 109, 88 A. 2d 887. . . .’

“. . . [In] Ebersole v. Beistline, 368 Pa. 12, 82 A. 2d 11, . . . The Court said (pp. 16, 17, 18) : ‘The evidence is insufficient to warrant recovery if it fails to describe, picture or visualize what actually happened sufficiently to enable the fact-finding tribunal reasonably to conclude that the defendant was guilty of negligence and his negligence was the proximate cause of the accident.^** A verdict cannot be supported on the basis of mere speculation or conjecture. Proof of negligence may be furnished by the circumstances themselves and it is not essential to have eye-witness testimony, but where the' circumstantial evidence is offered because direct proof is not available it must provide as the only reasonable inference the conclusion that the accident was caused by the negligence of the defendant. . . .

“. . . There was no proof of absence or want of due care on the part of the defendant and conjecture, speculation, guess or suspicion do not amount to proof. The circumstantial evidence does not provide as the only reasonable inference the conclusion that the accident was caused by the negligence of the defendant; . . .”

In the instant case Michael could have intentionally left the street and walked around the barrier through wooded property to the spot from which he fell; he could have walked through the nearby properties and returned to a spot from which he fell; he could have been standing on the edge of the gorge or embankment and slipped or fallen, or deliberately attempted to climb down the embankment and then have slipped and fallen. There was no evidence to prove or to justify a finding that Michael was thrown from his bicycle over the barricade and down the embankment. There was no proof that the railroad company or the City erected the barricade. Moreover, as the Court said in the recent case of Dugan v. P. R. R., 387 Pa. 25, 127 A. 2d 343, where we restated the general rule: “. . . it is so well settled in this State as to admit of no argument, that it is not obligatory on the part of the railroad to fence its right-of-way to prevent trespassing by children:^* Malischewski v. P. R. R., 356 Pa. 554, 52 A. 2d 215, and cases cited therein.”

McHugh v. Reading Co., 346 Pa. 266, 30 A. 2d 122, is a case which is analogous in its facts to the instant case and governs it. The case is well summarized in the syllabus which reads as follows:

“In an action for wrongful death, in which it appeared that the decedent, a six-year-old child, climbed on top of defendant’s stone wall, seated herself on an ornamental scroll formation known to children in the neighborhood as The king’s throne’, and thereafter, while descending, fell some twenty-four feet to the street below and was killed, it was Held, under all the evidence, that the defendant was not liable.

“The duty of a possessor of land to trespassing young children, to keep the land free from artificial conditions which involve an unreasonable risk of death or serious bodily harm to them, does not extend to a condition involving a risk the full extent of which such children are likely to realize and understand.”

Mr. Justice, now Chief Justice, Stern said (pages 268-269) :

“We have not been referred by counsel to any Pennsylvania case, nor has our own research disclosed any, in which recovery was allowed against the possessor of land, even though a permissive playground, where a child was injured merely by falling or jumping from a stationary object or structure on the property. Liability to trespassing children has uniformly been limited to accidents arising from latent dangers, such as unguarded machinery, live wires, pits or open trap doors. This distinction results from one of the conditions of liability set forth in the Restatement of Torts, §339, clause (c), that The children because of their youth do not . . . realize the risk involved . . .’ In the comment (p. 925) on this clause the Restatement says: ‘A possessor of land is . . . under a duty to keep so much of his land as he knows to be subject to the trespasses of young children free from artificial conditions which involve an unreasonable risk of death or serious bodily harm to them. This does not require him to keep his land free from conditions which even young children are likely to observe and the full' extent of the risk involved in which they are likely to realize. The purpose of the duty is to protect children from- dangers which they are unlikely to appreciate and not to protect them against harm resulting from their own immature recklessness in the case of known danger.’ This principió has been applied in our own cases, as, for example, Oil City and Petroleum Bridge Co. v. Jackson, 114 Pa. 321, 6 A. 128; Rodgers v. Lees, 140 Pa. 475, 21 A. 399; Brown v. Scranton, 313 Pa. 230, 169 A. 435; Dolena v. Pittsburgh Terminal Coal Co., 324 Pa. 228, 188 A. 112; see also Krystopowicz v. Reading Co., 40 D. & C. 304.

“No danger is more commonly realized or risk appreciated, even by children, than that of falling; consciousness of the force of gravity results almost from animal instinct. Certainly a normal child nearly seven years of age — indeed any child old enough to be allowed at large — knows that if it steps or slips from a tree, a fence, or other elevated structure, it will fall to the ground and be hurt. It may be that some children, while realizing the danger, will disregard it out of a spirit of bravado, or because, to use the language of the Restatement, of their ‘immature recklessness’, but the possessor of land is not to be visited with responsibility for accidents due to this trait of children of the more venturesome type.”

See to the same effect: Prokop v. Becker, 345 Pa. 607, 29 A. 2d 23; DiMarco v. P. R. R. Co., 321 Pa. 568, 183 A. 780; Jennings v. Glen Alden Coal Co., 369 Pa. 532, 87 A. 2d 206.

Appellees rely on Balia v. Sladek, 381 Pa. 85, 112 A. 2d 156, where defendant had failed to provide a barricade at a bend in a precipitous hillside. The Court said: “ ‘If a public street is dangerous by reason of its proximity to an embankment or precipitous decline, the city is liable for its failure by the erection of barriers or other devices to guard travelers from injury, in the use of the highway, who exercise reasonable care for their own safety’ . . . .” The facts in the instant case do not bring it within the principle of Balla-Sladek.

Appellees also rely on Sections 368 and 369, Restatement of the Law of Torts. Neither section is applicable to the facts in the instant case. Even if it could be assumed that either or both defendants were negligent, plaintiffs failed to prove that such negligence was the proximate cause of the boy’s death.

Judgment is reversed and is here entered for each defendant non obstante veredicto.

* He was one block away and did not know what the object was.

* Italics throughout, ours.

** This principle was reiterated as recently as Gayne v. Carey Mfg. Co., 385 Pa. 618, 621, 123 A. 2d 432.

* A property owner is not liable to a ten year old very alert; intelligent and exceptionally athletic boy for a steep embankment or dangerous condition, tbe existence of which is obvious and the risk of falling is fully realizable by him: McHugh v. Reading Co., 346 Pa. 266, 30 A. 2d 122; Prokop v. Becker, 345 Pa. 607, 29 A. 2d 23. See also: Roche v. P. R. R., 169 Pa. Superior ct. 48, 82 A. 2d 332; Jennings v. Glen Alden Coal Co., 369 Pa. 532, 87 A. 2d 206; DiMarco v. P. R. R. Co., 321 Pa. 568, 183 A. 780; Kosson v. West Penn Power Co., 293 Pa. 131, 141 A. 734.