243 Pa. 10 | Pa. | 1914
Opinion by
This is an appeal from the refusal of the court below to take off a judgment of compulsory nonsuit. Plaintiffs’ evidence tended to show that defendant’s railroad, in passing through the Borough of Beaver Falls, consists of three parallel tracks running on the west side of a stream known as the Beaver river or creek. At the point where the accident occurred boys and men had been accustomed for many years to cross the railroad tracks in order to reach the river for bathing and fishing and at times as many as fifty or sixty persons would cross in one day. There was a well-defined' path worn on each side of the railroad and upon the cinders on the road bed. There is an embankment five or six feet high along the side of the railroad, but it is “sort of washed out” and those crossing the tracks can easily get up and down, at the river.
On August 14, 19‘07, at about one o’clock p. m., a son of the plaintiffs’, named Silas Dale Lodge, who was about eleven years and six months old, started with three companions to go to the river to swim. 1 When the boys came to the railroad, a freight train was passing, and while waiting for it to pass, they stood between the tracks. While standing there, a passenger train came along, running at the rate of about fifty miles an hour. The last seen of Dale Lodge alive, was when he was standing on the path between the two tracks. After the
“The principle clearly settled by the foregoing, and many other cases that might be cited, is that when a railroad company has for years, without objection, permitted the public to cross its tracks at a certain point not in itself a public crossing, it owes the duty of reasonable care towards those using the crossing; and whether in a given case such reasonable care has been exercised, or not, is ordinarily a question for the jury under all the evidence.”
In the present case, the acquiescence of the defendant company for so long a period, in the crossing of its tracks at the point in question by pedestrians, amounted to . a license to cross. The defendant could have withdrawn its permission to the public to use a path over the tracks at that place, but until it did so, it was bound to use reasonable precautions in the management of its trains, to prevent injury to pedestrians. Had this accident befallen an adult, who was at the time standing upon the tracks and waiting for a train to pass, he might as a matter of law, very justly and properly have been held guilty of contributory negligence. But the boy who was killed was between eleven and twelve years of age. The question of his capacity to comprehend and guard against the peril he was in, was for the consideration of the jury,
In Kehler v. Schwenk, 144 Pa. 348, Mr. Justice Mitchell said (p. 359): “All the cases agree that the measure of a child’s responsibility is his capacity to see ánd appreciate danger, and the rule is that, in the absence of clear evidence or lack of it, he will be held to such measure of discretion as is usual in those of his age and experience. This measure varies, of course, with each additional year, and the increase of responsibility is gradual. It makes no sudden leap at the age of fourteen. That is simply the convenient point at which the law, founded upon experience, changes the presumption of capacity, and puts upon the infant the burden of showing his personal want of the intelligence, prudence, foresight, or strength usual in those of such age. The standard remains the same, to wit, the average capacity of others in his condition. That this is the rule as to children under fourteen, is. held in all our cases from Rauch v. Lloyd, 31 Pa. 358, to Sandford v. Railroad Co., 136 Pa. 84.”
If the jury should find that the path was a permissive crossing of the tracks, then the fact that the boy showed a lack of good judgment in starting across the path before the freight train had gone entirely by, and in standing for a short time in the space between the tracks waiting for the train to pass, would not make of htm a trespasser. ' It may, if the jury so conclude, be sufficient to charge him with contributory negligence. But we cannot, under the circumstances regard his act as a trespass upon the property of the defendant company. The question of defendant’s negligence was also for the. jury. It was for them to say whether the running of a train at the rate of fifty miles an hour, within the limits of a borough, at á point where at least fifty or sixty nien and
The judgment of the court below is reversed, with a procedendo.