Kremposky v. Mt. Jessup Coal Co., 266 Pa. 568

Kremposky v. Mt. Jessup Coal Co.

266 Pa. 568 | Pa. | 1920

Opinion by

Mr. Justice Walling,

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*572in fifty feet of the bridge; also that it had repeatedly ordered boys from the bridge, bnt plaintiff was not identified as one to whom such orders had been given. Defendant also offered evidence tending to show that Stephen said a boy had pushed him under the car, but this he denied. The trial judge submitted the case to the jury, including the questions of negligence and contributory negligence, and this appeal by defendant is from judgment entered upon verdicts for plaintiffs.

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., 248 Pa. 474; Taylor v. Delaware & Hudson Canal Co., 113 Pa. 162; Lodge v. Pittsburgh & L. E. R. R., 243 Pa. 10; Kay v. Pennsylvania R. R., 65 Pa. 269; Terry v. Delaware, L. & W. R. R., 60 Pa. Superior Ct. 451. Defendant’s employees knew the daily use the public made of the walk, and especially that the boys used it in going for cows; also knew the width of the walk, the overhang of the cars and all the conditions. Hence, it might well be found that it was negligence to run a car onto the bridge so as violently to bump another car standing thereon, without warning or looking to see who might be upon the walk; for it falls within the rule that it is the duty of those moving cars over a permissive crossing to look ahead and see if the tracks are clear.

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 *573children. In Gawronski w McAdoo, Director General of Eailroads, 266 Pa. 449, the opinion of the court by Mr. Justice Moschzisker states the rule that, “where a railroad company permits its yards or tracks to be used as a playground for children, the corporation is required to operate its rolling stock with due care to avoid injuring such children, and that the ordinary rule, as to the limited measure of duty owing to trespassers, is inapplicable”; which is supported by abundant authorities there cited.

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., 252 Pa. 391;. Parker v. Washington Elec. St. Ry., 207 Pa. 438; Berreski v. Phila. Electric Co., 67 Pa. Superior Ct. 215), as was the father’s act in permitting the boy to go for the cows. A child nine years of age will not be held guilty of contributory negligence as matter of law, but, if of sufficient capacity, may be as a matter of fact, and that is for the jury.

The judgment is affirmed.