Opinion by
This is an action of trespass brought by a father and minor son to recover for personal injuries to the latter. Defendant had a coal mining plant, including a breaker and other buildings, located on a thirty-five acre tract of land at Jessup, in Lackawanna County. This land was traversed by a ravine over which defendant many years ago constructed a bridge 175 feet long and 26 feet wide. A double track railroad occupied the center of the bridge, on each side of which was a plank walk 4 or 5 feet in width and protected on the outerside by a railing. The railroad was used for the storage and movement of coal cars. The bridge formed part of defendant’s plant and as such was private property; however, for many years prior to the accident, people, both adults and children, had been accustomed to use the walks daily as a short cut between Jessup and Winton, and for other purposes, including attendance on ball games, going for cows, etc. This appears from all the evidence and is ample to show that the walks had become permissive ways
On the afternoon of August 20, 1915, the plaintiff, Stephen Kremposky, nine years old, in going after cows, was crossing the bridge on one of the walks, in company with three other boys, and had just passed a coal car standing on the adjoining track, when it suddenly moved forward, as the result of a hump by another car, and knocked him down so that his left arm fell upon the track and was crushed. The car overhung the walk nearly two feet and left only a narrow space for pedestrians, and plaintiffs’ evidence tends to show that a pile of coal occupied a part of such space at the place of accident. Defendant gave no warning of the movement of its cars; in fact, the brakeman in charge thereof testified that he could have seen the boys but did not look, although he knew people were accustomed to use the walk. Defendant’s evidence is that it had posted notices forbidding trespassing upon the premises, but none with
The only question raised is that the court erred in submitting the case to the jury; not to have done so would have been manifest error. The evidence not only warranted but required a finding that the walk in question had become a permissive way; hence, those using it. were licensees and not trespassers, and the rule as to the latter has no application. As to the former it is the duty of the owner of premises to exercise reasonable care to avoid inflicting injury upon those using a permissive way thereon: Counizzarri v. Phila. & R. Ry.,
The same principle applies here as in case of playgrounds, where we have often held that children cannot be treated as trespassers in places where they are permitted to play, and that property owners under such circumstances must use reasonable care to avoid injury to the
It cannot be affirmed as a matter of law that plaintiff was precluded from using the walk because of trespass signs posted over fifty feet from the bridge, nor because other boys had been warned to keep away, nor because Stephen might have gone for the cows by another route.
It is not clear that, had he been an adult, the court could have declared him guilty of contributory negligence ; however, owing to his age, that question was at most for the jury to whom it was properly submitted (Lodge v. Pittsburgh & L. E. R. R., supra; Di Meglio v. Phila. & R. Ry.,
The judgment is affirmed.