95 Pa. 398 | Pa. | 1880
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,
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
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.