Metzler v. Philadelphia & Reading Railway Co.

Opinion, by

Rice, P. J.,

This was an action of trespass brought by the plaintiff to recover damages for the death of bis minor son, aged between nine and ten years, caused by his being struck by a train of the defendant company nearly opposite its station at Manayunk in Philadelphia upon what is spoken of in the testimony as Gay street crossing. On the day of the accident, at an hour when according to the testimony, there was usually the greatest amount of travel upon this crossing, a pay train, consisting of an engine and car, was standing on the track nearest the station, the end of the car being just clear of the plank footway at the crossing. The boy came up the station platform from the direction of Levering street dragging a sled, and, without stopping, turned to go over the crossing. After he had passed the end of the pay train and reached the other track, he was struck by the' pilot of the engine of an express train running «southeasterly at a speed estimated by the witnesses at from twenty-eight to thirty-five miles an hour, and thrown to the outside of the track. There is a sharp curve in the track in the neighborhood of 600 feet to the northwest of the crossing beyond which, it is alleged, an approaching train cannot be seen. It was also alleged that the view of the track in question after it had rounded this curve was obscured by the standing train, and that no proper signal was given until the train was almost upon the boy. One of the witnesses testified : “ I happened to look up and I heard the locomotive make a sharp whistle and at the same time I saw the boy and sled go up in the air, at the same time the thing happened.” These questions of fact were submitted to the jury and were determined in accordance with the plaintiff’s contention. «

The principal question presented for our consideration by the learned counsel for the defendant in his statement of the questions involved relates to the nature of this crossing and to the duty of the company in the exercise of ordinary care, to give the warnings to the general public of approaching trains usually given at public crossings. A statement of the facts, which .in the main are undisputed, is essential to a complete understanding of the question.

The defendant’s two railroad tracks at the point in question are laid in the center of Oresson street, which is closely built up on both sides and is in a populous part of the city. The railroad station is on the northeast side of the track. To the northwest of the station the street is intersected by Carson street, and to the southeast of the station by Levering street. Both of these intersecting streets are planked across the railroad and are open to travel by vehicles and pedestrians. They are distant from each other about 300 feet. - The open station platform, which is much longer than the station building upon which it fronts, extends from Carson street to within about seventy-five feet of Levering street. It was stated by one of the witnesses that this platform is located on the bed of Cresson street. It appears also from the draft and some of the photographs offered in evidence that for part of its width, at least, and for the whole of its length, it corresponds in location with what would be the public sidewalk if that were extended from Carson street to Levering street. On the other side of the tracks, directly opposite the station platform, and cor-, responding with it in length, is another open and uncovered platform maintained by the company. This platform appears to be wholly within the lines of Cresson street, but is separated from the sidewalk, which is between it and the building line, by a wooden railing. This platform, as is the station platform, is elevated above the tracks a foot and one half or two feet but judging from the photographs offered in evidence, it is open at both ends and is unobstructed to travel by pedestrians who choose to mount the two or three steps leading up to it and to pass along Cresson street from Carson to Levering in that way. Nearly midway between Carson and Levering streets and to the southeast of the station building, but opposite the station platform, Gay street joins Cresson street at nearly a right angle. It seems, however, that it does not cross directly at that point, but is continued on the upper side of Cresson street from a point about 130 feet to the southeast. Three steps lead directly from the Gay street sidewalk up to the platform on the lower side of Cresson street, an opening of the full width, or nearly so, of the sidewalk being left in the railing heretofore referred to to permit pedestrians to pass freely to and fro. Directly opposite this opening a plank walk is laid across the railroad bed for the use of pedestrians, and the two platforms are depressed at this point to correspond substantially with its level. This is what is referred to in the testimony as the Gay street crossing.

The witnesses testify that the population of Manayunk is about 40,000; that this station is nearly in the center cf the most thickly populated part; that the residences are principally on or beyond the upper or station side of Cresson street and the factories and business places on the other side; that the public in large numbers, uninterruptedly, and for a long time — for forty years according to one witness — have used this Gay street crossing as a convenient way from one part of the city to the other. Without going into the details of the evidence upon this point, it is enough to say that the evidence would warrant a jury in finding, first that this use was so frequent, general, uninterrupted and long continued that it must have been known to the officials and agents of the railroad company in charge at that point, and second that nothing was done by them to prevent it, or to notify the public that it was forbidden, or that the right to use the way thus provided for crossing the railroad and the street upon which it is laid was restricted to arriving and departing passengers. The fact that at the 'northwest end of the station platform and at the southeast end of the other platform there was a sign: “ Danger, Do not walk or trespass on the railroad ” does not, in our opinion, require a modification of the foregoing statement' relative to the Gay street crossing. There was nothing in that sign to indicate that it was intended for those not having business with the railroad company or going to or from its trains as passengers. An ordinary person would not interpret it to mean that the platform and the footway crossing provided for the purpose were not to be walked upon. In short, it was not a sign excluding the general public from that part of the highway.

As a general rule, a railroad company has the exclusive right to use its own track, and one who goes upon it without an invitation or license from the company is a trespasser. But this rule does not apply at highway crossings, nor invariably where the track of the railroad is laid longitudinally upon the surface of the street. In a case which arose out of a railway accident upon this very street, Justice Agnew. said: “ Thus it is evident that the position of the child while the train was moving up Oresson street, the outlook of the engineer, the place of the fireman, the rate of speeá, and all the circumstances were matters entering into the question of negligence, taken into connection, also, with the all-important fact that Manayunk is a closely built, populous town, Cresson street a public thoroughfare, not of great width, where many persons of all ages, sexes and condition are constantly passing and re-passing, and crossing the tracks of the railroad rightfully.” Further on he said: “ Where the people and the trains have a common right to be, and to have a joint use of the highway, the rights of each must be regarded : ” Philadelphia and Reading Railroad Co. v. Long, 75 Pa. 257. We do not cite this case as authoritatively determining that all members of the general public have a right to cross Cresson street and the railroad tracks upon it wherever it suits their convenience or pleasure. It is, however, a pertinent authority for the proposition that no conclusive presumption of law arises from the evidence in this case that the boy who was killed at the Gay street crossing was a trespasser, either when he was upon the crossing or was walking along the highway upon the platform above described for the purpose of reaching the crossing. The evidence does not disclose how or when the company acquired the right to maintain its tracks and platforms on Cresson street; nor does it show the extent of the right thus acquired. It is to be presumed, however, in the absence of evidence to the contrary, that its occupancy of the stoeet to the extent that it goes is lawful; it may also be conceded for the purposes of the case that the company had a right to appropriate to its exclusive use all that part of the street lying between Carson and Levering streets. But it must be conceded also that if in making its appropriation it contemplated and provided for a continued although restricted use of it by the general public it would be bound in the exercise of ordinary care in the operation of its trains to have regard to such use. In other words, whether the use of this crossing by the public was by virtue of a right of which the railroad company could not deprive them, or was terminable at its will, yet so long as it was permitted by the- company the latter was chargeable with knowledge of the danger to human life incident to such joint use of the highway at that point and was bound to such precaution in the management of its trains as ordinary prudence dictated for the protection of pedestrians from injury. To hold as a matter of law that under the facts of this case a pedestrian crossing Cresson street at the Gay street crossing was a trespasser to whom the company owed no duty whatever, not only would be going far beyond what was decided in any of the cases cited by the appellant’s counsel but would be irreconcilable with several more pertinent decisions. This will appear from a brief review of the cases. In Philadelphia & Reading Railroad Co. v. Hummell, 44 Pa. 315, the accident by which the plaintiff was hurt did not occur at any street or at any public or permissive crossing, but upon a railroad siding which ran over the lands of others, and as pointed out in a later case the evidence did not show that it was subject to any permissive use. The company had paid for its right of way and had a clear right to a free track which they had not yielded up or modified by any act of their own : Kay v. Pennsylvania Railroad Co., 65 Pa. 269. In distinguishing the case last cited from Gillis v. Pennsylvania Railroad Co., 59 Pa. 129, upon which appellant’s counsel relies, Agnew, J., used language which may be appropriately quoted to distinguish it from the present case. “ Thus in Gillis v. Railroad Co., it will be seen that the negligence alleged was purely of a negative character, in omitting to keep up a structure sufficient to bear the weight of a crowd unexpectedly and exceptionally gathered upon it, for their own curiosity, and for no purpose connected with the use of the railroad. But in the present case the negligence charged consisted of a positive act of carelessness, in sending a car around a curve out of sight, on a descending grade, at a place where persons might be expected to be, from the permissive use suffered by the company. It was the duty of the court, therefore, to have submitted the facts to the jury for their determination, whether there was negligence or not.” In Baltimore & Ohio Railroad Co. v. Schwindling, 101 Pa. 258, the. court carefully pointed out the distinction between it and cases like the present in the following manner : “ The cases of injuries to persons while crossing the track at permissive crossings are not analogous, and have no application. When the right to cross at a particular place is established, by permission or otherwise, the duty of ordinary care is incumbent upon the company. But in the present case the plaintiff was not engaged in the act of crossing the track or even the platform when he was injured, and therefore the cases on this subject are not in point.” In Moore v. Pennsylvania R. R. Co., 99 Pa. 301, the boy was walking along the ties. “ He was not on the track at a public crossing, nor was he in the act of crossing. It is true that the railroad track at this place was laid upon the bed of a public street, and hence the right to cross it was not limited to the highway or street crossings. But the boy was walking along the track, and not across it, when he was struck. This he clearly had no right to do.” The same substantial distinction was recognized and pointed out by the Supreme Court in Brague v. Northern Central Ry. Co., 192 Pa. 242, and Kaseman v. Sunbury Boro., 197 Pa. 162.

“Duties groAv out'of circumstances, the authorities tell us, and that which in one case -would be an ordinary and proper use of one’s rights may, by a change of circumstances, become negligence and a want of due care: ” Kay v. Pennsylvania R. R. Co., 65 Pa. 269. In the application of this general principle it has been held that where a person crossed a railroad track by a common and well-known footpath used by the public for many years without let or hindrance on the part of the railroad company and its employees he could not be regarded as a trespasser to whom the company owed no duty to give warning of approaching trains: Philadelphia & Reading R. R. Co. v. Troutman, 11 W. N. C. 453. “ The principle clearly settled by the foregoing, and many other cases that might be cited, is, that when a railroad company has for years, without objection, permitted the public to cross its tracks at a certain point not in itself a public crossing, it owes the duty of reasonable care towards those using the crossing ; and whether in a given case such reasonable care has been exercised, or not, is ordinarily a question for the jury under all the evidence: ” Taylor v. Delaware & Hudson Canal Co., 113 Pa. 162. If this be true of a case where the tracks are laid upon land in the exclusive ownership of a railroad company, the principle applies with greater force where they are laid in the street of a thickly populated part of a city and a footway has been provided for pedestrians to cross them at the junction of the street with another street. The construction and maintenance of such foot-way at such a point, without notice being given that it was exclusively for the use of passengers, followed by such notorious and long continued use of it by the general public in crossing the highway as we have heretofore described, were facts from which it might, well be inferred, that if it was not originally provided as a public crossing, its use of it by the public was with the knowledge and acquiescence of the company. This being so, it would have been manifest error for the court to instruct the jury that the company owed no duty to give warming of approaching trains to members of the general public not having business with the company, who used this footwalk at Gay street as a convenient way across Oresson street and the railroad tracks upon it. Under all the evidence the defendant has no right to complain that the question whether in the movement of its train the company exercised that degree of care which under the circumstances it was in duty bound to do was submitted to the jury. Nor have we been convinced by the earnest argument of appellant’s counsel that there was any substantial error in the manner of its submission.

But it is urged that even if this was a recognized crossing and the boy was not a trespasser, the question of his contributory negligence ought to have been left to the jury to determine under proper instructions as to what was required from a boy of his years in a dangerous place. And while it is conceded that there was no evidence as to his capability or measure of intelligence, it is claimed that the presumption is that he was as capable and intelligent as the average boy of his age. The latter propositition is in accordance with the rule as restated by Mr. Justice Fell in Parker v. Washington Electric Street Railway Co., 207 Pa. 438; but it was held in that case, as it had been in many previous cases, that where the facts are settled and there can be no reasonable doubt as to the inferences to be drawn, the question of the infant’s contributory negligence. may be determined by the court as a matter of law. In the same connection Justice Fell cites Taylor v. Delaware & Hudson Canal Co., 113 Pa. 162, as a case where the court properly held that because of her age the infant could not be charged with negligence and that the question of contributory negligence did not arise in the case. Other cases may be cited in which the same ruling was sustained, but it seems to us unnecessary to multiply authorities upon the point when a case so closely analogous as Taylor v. Delaware & Hudson Canal Co. is presented. It is to be observed further, that the court was not requested to charge upon the question of contributory negligence.

The only remaining assignments of error that require notice are the first and second, which relate to rulings upon questions of evidence, and these may be briefly disposed of.

We agree with the appellant’s counsel that it was not permissible for the plaintiff to prove that gates were erected at the Levering street crossing after the accident for the purpose of showing negligence. Proof of negligence at that point would have been irrelevant to the issue, and second, the fact of negligence could not be established in that way: Baran v. Reading Iron Co., 202 Pa. 274. But the evidence which is quoted in the first assignment was not offered for that purpose. The defendant’s counsel evidently deemed the fact that Levering street crossing was protected by gates at the time of the accident as having a bearing upon the question whether there was a permissive crossing at Gay street recognized by the company, and we cannot say that it would have been wholly irrelevant. But having drawn out from the plaintiff’s witness upon cross-examination the statement that the crossing was protected by gates, the court committed no error in permitting plaintiff to prove that they were not there at the date of the accident.

It may be, as appellant’s counsel well says, that upon the question whether this was a permissive crossing, evidence as to the amount of travel upon it at different times of day would be immaterial. Grant that to be so, still if the facts were found that it was a permissive crossing and the boy was not a trespasser, it was not irrelevant to show that the accident occurred at a time when there was usually the greatest amount of travel upon the crossing. In that event this evidence would have a bearing upon the question of the care which it was incumbent upon the railroad company to exercise in the management of its trains at that hour of the day. Upon an examination of the whole record we find no error for which the judgment should be reversed.

Judgment affirmed.