28 Pa. Super. 180 | Pa. Super. Ct. | 1905
Opinion, by
This was an action of trespass brought by the plaintiff to
The principal question presented for our consideration by the learned counsel for the defendant in his statement of the questions involved relates to the nature of this crossing and to the duty of the company in the exercise of ordinary care, to give the warnings to the general public of approaching trains usually given at public crossings. A statement of the facts, which .in the main are undisputed, is essential to a complete understanding of the question.
The defendant’s two railroad tracks at the point in question are laid in the center of Oresson street, which is closely built up on both sides and is in a populous part of the city. The railroad station is on the northeast side of the track. To the
As a general rule, a railroad company has the exclusive right to use its own track, and one who goes upon it without an invitation or license from the company is a trespasser. But this rule does not apply at highway crossings, nor invariably where the track of the railroad is laid longitudinally upon the surface of the street. In a case which arose out of a railway accident upon this very street, Justice Agnew. said: “ Thus it is evident that the position of the child while the train was moving up Oresson street, the outlook of the engineer, the place of the fireman, the rate of speeá, and all the circum
“Duties groAv out'of circumstances, the authorities tell us, and that which in one case -would be an ordinary and proper use of one’s rights may, by a change of circumstances, become negligence and a want of due care: ” Kay v. Pennsylvania R. R. Co., 65 Pa. 269. In the application of this general principle it has been held that where a person crossed a railroad track by a common and well-known footpath used by the public for many years without let or hindrance on the part of the railroad company and its employees he could not be regarded as a trespasser to whom the company owed no duty to give warning of approaching trains: Philadelphia & Reading R. R. Co. v. Troutman, 11 W. N. C. 453. “ 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: ” Taylor v. Delaware & Hudson Canal Co., 113 Pa. 162. If this be true of a case where the tracks are laid upon land in the exclusive ownership of a railroad company, the principle applies with greater force where they are laid in the street of a thickly populated part of a city and a footway has been provided for pedestrians to cross them at the junction of the street with another street. The construction and maintenance of such foot-way at such a point, without notice being given that it was
But it is urged that even if this was a recognized crossing and the boy was not a trespasser, the question of his contributory negligence ought to have been left to the jury to determine under proper instructions as to what was required from a boy of his years in a dangerous place. And while it is conceded that there was no evidence as to his capability or measure of intelligence, it is claimed that the presumption is that he was as capable and intelligent as the average boy of his age. The latter propositition is in accordance with the rule as restated by Mr. Justice Fell in Parker v. Washington Electric Street Railway Co., 207 Pa. 438; but it was held in that case, as it had been in many previous cases, that where the facts are settled and there can be no reasonable doubt as to the inferences to be drawn, the question of the infant’s contributory negligence. may be determined by the court as a matter of law. In the same connection Justice Fell cites Taylor v. Delaware & Hudson Canal Co., 113 Pa. 162, as a case where the court properly held that because of her age the infant could not be charged with negligence and that the question of contributory negligence did not arise in the case. Other cases may be cited in which the same ruling was sustained, but it seems to us unnecessary to multiply authorities upon the point
The only remaining assignments of error that require notice are the first and second, which relate to rulings upon questions of evidence, and these may be briefly disposed of.
We agree with the appellant’s counsel that it was not permissible for the plaintiff to prove that gates were erected at the Levering street crossing after the accident for the purpose of showing negligence. Proof of negligence at that point would have been irrelevant to the issue, and second, the fact of negligence could not be established in that way: Baran v. Reading Iron Co., 202 Pa. 274. But the evidence which is quoted in the first assignment was not offered for that purpose. The defendant’s counsel evidently deemed the fact that Levering street crossing was protected by gates at the time of the accident as having a bearing upon the question whether there was a permissive crossing at Gay street recognized by the company, and we cannot say that it would have been wholly irrelevant. But having drawn out from the plaintiff’s witness upon cross-examination the statement that the crossing was protected by gates, the court committed no error in permitting plaintiff to prove that they were not there at the date of the accident.
It may be, as appellant’s counsel well says, that upon the question whether this was a permissive crossing, evidence as to the amount of travel upon it at different times of day would be immaterial. Grant that to be so, still if the facts were found that it was a permissive crossing and the boy was not a trespasser, it was not irrelevant to show that the accident occurred at a time when there was usually the greatest amount of travel upon the crossing. In that event this evidence would have a bearing upon the question of the care which it was incumbent upon the railroad company to exercise in the management of its trains at that hour of the day. Upon an examination of the whole record we find no error for which the judgment should be reversed.
Judgment affirmed.