198 Pa. 166 | Pa. | 1901
Opinion by
Joseph Enright, a boy of ten years, in company with two other boys boarded a freight train on defendant’s road while it was standing at the foot of Fortieth street in the city of Pittsburg on the afternoon of September 5, 1897. They got on a Pittsburg & Western iron flat car, located about the
Such briefly stated are the facts of this case as disclosed by the testimony. The learned judge of the court below granted a compulsory nonsuit and subsequently refused to take it off for the reason, as stated in his opinion, that “ this case is ruled by the case of Cauley v. Pittsburg, etc., Railway Co., 98 Pa. 498.” We must, therefore, assume that the court below held that the action of the brakeman resulting in the injury of Joseph En-right was not negligence for which the defendant company was liable.
The liability of the defendant in this action depends upon the question whether it owed a duty of ordinary care and prudence to the plaintiff’s son under the circumstances of the case and whether it exercised such duty. If no obligation of that character rested upon the defendant, then it is exonerated from any liability for the action of its employee in causing the boy to place himself in a perilous position which resulted in his injury.
The testimony, which we must assume to be true, establishes the fact that the boy was frightened by the brakeman so that
If the position assumed by the court and urged by the appellee’s counsel be correct, then a railroad company owes no duty whatever to a person of any age who enters upon one of its trains as a trespasser. The company under such circumstances may with impunity at any time eject a person from a train at the peril of life and limb. Its employee may throw the trespasser from the train, though death necessarily results from his action. The child of tender years, whose discretion cannot protect him, as in this case, who has entered its train with the knowledge and without objection of the brakeman, may be cast from the train with impunity while its rapid speed insures the greatest danger. Such is the logical conclusion from the ruling of the court below.
We cannot assent to a doctrine fraught with so much danger to the public and with so little regard for the rights of the individual. As said by Mr. Justice Gordon in Biddle v. Hestonville, etc., Pass. Ry. Co., 112 Pa. 551, it “would so illy accord with Christian civilization as to render its maintenance impossible.” It cannot be supported by reason; it ignores a duty owed by a man to his fellow-man in civilized society; it repudiates an obligation resting alike upon the individual and the corporation.
The plaintiff’s son was a trespasser upon the defendant’s train. He had no right to be there and the brakeman would have been justified in expelling him. The defendant owed no duty to carry him in safety to his destination or to surround him with safeguards to protect him from falling from the train while in motion. He was not a passenger nor entitled to protection as such. The defendant was not required to stop its train to permit him to alight, nor to run the train at any particular speed to suit the boy’s convenience or for his safety. No duties of this character devolved upon it. But conceding this to be true, it does not follow that the defendant by its em
The simple proposition to be determined here is the right of the’ defendant by its employee to endanger the life of a child of tender years by compelling him to alight from a freight train while it is moving at a rapid speed. The boy was not injured by reason of the dangerous position in which he placed himself, but because of the careless and reckless act of the brakeman in causing him to alight while the train was in motion. The cause of the boy’s injury, therefore, is directly attributable to the negligent act of the defendant’s employee in frightening him so that he attempted to quit the train in the face of imminent danger. We think the defendant company was negligent and should answer for its conduct.
This position is sustained by many decisions of this court. In Biddle v. Ry. Co., supra, Mr Justice Gordon, delivering the opinion, says: “ That the defendant’s driver or conductor was grossly negligent in compelling a child of twelve years of age to jump; and that backwards, from the platform of a moving car, no one can well deny. ... It was a mistake to hold that because the child was a trespasser it could therefore be ejected in a manner which endangered its life or limbs. In the case of Penna. Co. v. Toomey we held, per Mr. Justice Mercur, that Such a disposition of a trespassing adult could not be allowed, and that ordinary care must be used to avoid injury even to a trespasser is fully established by the cases of Penna. R. Co. v. Lewis, 79 Pa. 33, The Hydraulic Works Co. v. Orr, 83 Pa. 332 and The Phila. & Reading R. R. Co. v. Hummell, 44 Pa.
The learned counsel for the appellee contends that the facts of this case bring it within the decisions of the court in Flower v. Penna. R. Co., 69 Pa. 210, Balt. & Ohio R. R. Co. v. Schwindling, 101 Pa. 258, and Cauley v. Pittsburg, etc., Ry Co., 95 Pa. 398. It is therefore necessary to refer to these cases briefly and see what they decide.
In Flower v. Penna. R. Co., a boy, who was standing on the platform of a water tank, was requested by the fireman, who was acting as temporary engineer, to put in the hose and turn the water on the engine tank. He climbed up the side of the tender to put in the hose, and as he did so, some detached freight cars
We think it apparent that the two cases just referred to do not sustain the contention of the appellee. The facts clearly distinguish them from the one at bar.
It must be conceded that Cauley v. Pittsburg, etc., Ry. Co., supra, supports the position of the appellee. It was before the court twice and is reported in 95 Pa. 898, and 98 Pa. 498. Both opinions were written by the same justice and from both judgments two justices dissented. The opinion in the first report of the case is broader and goes much further than the syllabus, in which there is nothing that conflicts with the views expressed in this opinion. The second opinion reiterates the views enunciated in the first opinion. We have examined carefully the decisions of this court cited in both opinions, and are convinced that they do not sustain the conclusion of the court on the facts ’ disclosed in the Cauley case. We do not think the doctrine announced in the opinions filed in that case is supported by reason or authority, and in so far as it conflicts with the views herein expressed, the case is overruled.
The judgment is reversed and a procedendo awarded.