183 A. 780 | Pa. | 1936
Argued January 14, 1936. Plaintiffs secured a verdict in their action of trespass to recover damages for personal injuries to the minor. From the entry of judgments n. o. v. for defendant they have appealed.
Defendant's right-of-way runs in a northeasterly direction as it intersects Wyoming Avenue near the intersection of that avenue with Tampa Street in the City of Philadelphia. There is a single track located in a cut approximately thirty feet deep. A small bridge carries Wyoming Avenue over the track below. The railroad's property extends for an additional thirty-five feet from *570 the top of the bank on the eastern side of the cut. This strip of land, which is on a level with Wyoming Avenue, has not been improved in any way, and across it, beginning at the eastern end of the bridge, two paths have been worn, a narrow footpath running very close to the edge of the cut, and a wider path, often used by vehicles, near the eastern boundary line of the right-of-way. Both paths have been in frequent use by residents of the neighborhood. To the east of defendant's property the adjoining land is also vacant, and the men and boys of the surrounding district use that land as a field for playing ball. On March 16, 1929, a group of boys had been playing in the accustomed place. Their game had broken up and they had started home. They were tossing the ball from one to the other while walking along. One of them missed the ball and it became lost. The minor plaintiff, not quite eleven years of age, went to the path by the edge of the cut to see if it had gone down toward the railroad track. It had been raining and the soil was loose. The ground on which he was standing gave way, and he was precipitated down the embankment and underneath the wheels of the cars of a passing freight train, sustaining the serious injuries which form the basis of the present action.
Plaintiffs argue that the property was either a playground or a permissive way or both, and that it was therefore incumbent upon defendant to use ordinary care, regardless of whether that involved positive or negative action, to keep the premises in a safe condition. The evidence is obviously insufficient to support any finding that the playing field included defendant's property. The clear purport of plaintiffs' testimony is that the playground was entirely upon the adjoining property. The only witnesses to locate the playground were the minor plaintiff and one of his playmates. They both testified that it was to the east of the wide path which bordered the eastern boundary of defendant's property. *571
No problem under the so-called "playground rule" (see Rahe v.Fidelity-Phila. Trust Co.,
The proof of the permissive way is clear, however, and the requirement of ordinary care toward the users thereof may be conceded. But, as we understand plaintiffs' argument, their contention is in reality much more far-reaching. Although they do not complain of any negligence in the excavation of the cut, they do argue that defendant was required to provide some artificial support, i. e., concrete abutments or retaining walls, to hold up the ground, or, in lieu thereof, to erect a fence or guard along the path. Such an obligation would certainly appear to be unreasonable, and in fact oppressive. We are persuaded to the view that the requirement of ordinary care does not go so far, and that the law can impose no such duty.
The path followed the contour of the bank. It is a fact not without significance that its inauguration and use were obviously subsequent to the excavation. The acceptance of plaintiffs' contention would be to impose a duty upon defendant to put the premises in better condition than that which existed prior to the inauguration of the path. We cannot lend countenance to this argument. This boy was merely a gratuitous licensee: see Kremposky v. Mt. Jessup Coal Co.,
We think it clear that defendant was likewise under no legal obligation to shore up the cut or to fence it in. Under the circumstances defendant could not, without giving proper warning, affirmatively increase the hazard, or carry on dangerous operations in disregard of the rights of users of the path: Kay v. P. R. R. Co.,
The doctrine of permissive ways is not to be stretched to an absurdity: see Fortunato v. Shenango Limestone Co.,
Judgments affirmed. *574