192 Pa. 242 | Pa. | 1899
Opinion by
The plaintiff and all his witnesses who speak upon the sub
Another witness for the plaintiff, McCaslin, said: “ There was a freight train there at the time of the accident j it extended over the road three or four cars below the crossing; it started up—it was just nicely on a move—just pulling up—as the ‘ pusher ’ went back over the crossing. ... At the time the plaintiff was injured the train was moving north on the main '.track; it required about four cars to have passed before the tram would have passed the crossing; it would have taken a little more than a minute—a little longer than that.” This freight train was moving on the main track over the crossing, and it was to get around this, according to Smith, that the plaintiff walked down on the siding. Had he waited this very brief space of time, a single minute, he could have crossed in perfect safety. He had gone from his father’s house a few moments before to the penstock to get a pail of water. The penstock was about seven feet from the nearest rail of the track. He was asked by his own counsel: “ Q. After you got the pail of water and started to go home, state what you did. A. I went back up into the public highway and started down the
“ And the rule must be the same whether the railroad is in the vicinage of many or few inhabitants. In the one case as in the other, going upon it is unlawful, and therefore need not be expected.”
The whole of this reasoning is applicable to the present case and controls it. In Mulherrin v. Railroad Co., 81 Pa. 366, we held that where a person goes on a track he cannot recover from the company except for wanton injury, although the negligence of the company’s agent contributed to the result. In the opinion we 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 have not only a right of way, but
We have applied the rule in many other cases of children, but it is not necessary to cite them, as there is no dispute about the law. The appellant however claims that there are several considerations which take this case out of the ordinary rule. These are all fully considered and answered in the opinion of the learned court below on the motion to take off the nonsuit, and we do not consider them of sufficient force to make any extended answer to them now. We concur entirely with the court below and for the reasons stated in the opinion in the decision refusing to take off the nonsuit. The permission to the neighbors to take water from the penstock cannot possibly be regarded as a permission to any one to walk on the tracks. The boy was not at or on the crossing when he was struck, and it was not the duty of the men on the train to look out for trespassers. Whether the boy was on the main track or side track made no difference in the application of the rule. It is a mistake to say the boy was crossing the track. He and all his witnesses said he was walking along and on the track. The assignment of error is dismissed.
Judgment affirmed.