248 Pa. 4 | Pa. | 1915
Opinion by
This is an action brought by Daniel O’Leary and his wife against the defendant railroad company to recover damages for the death of their four year old son who whs killed January 6, 1911, while on one of the tracks of defendant company’s yard at McKees Rocks, Pennsylvania.
The defendant has a large railroad yard in the northern portion of the Borough of McKees Rocks, Allegheny County, which consists of from eighty to one hundred tracks extending in an easterly and westerly direction, used by defendant for storing, switching and moving its cars and trains. The yard is not enclosed by a fence, and is open from every point adjacent to the tracks.
The plaintiffs, at the time of the accident, resided on Page street, in McKees Rocks, which lies south of and parallel to the defendant company’s tracks. The yard surrounding their house was enclosed by a high board fence, preventing direct access to the street or alley immediately in the rear, called Harriet street. This street is from 15 to 18 feet wide, extends westerly to-the playground, is not paved, and there is nothing but the track itself to indicate where the street ends and the railroad yard begins. The street is used by pedestrians and vehicles. A gate leads from the plaintiffs’ premises to the rear yard of the adjacent property to permit access to a pump which stood there and is used in common by the families occupying the two premises.
The day of the accident John O’Leary who was then four years and three months old went from his father’s yard through the open gate into the adjacent yard. He there met a boy less than ten years of age. He had his sled with'him and seating himself on it he requested the older boy to pull the sled which he did. They passed out through the rear gate of the neighbor’s property, which had been left open by some of the neighbor’s boarders, to Harriet street. They proceeded along this street to the playground. After they had been there for about ten minutes the O’Leary boy saw something on the opposite side of the first railroad track which attracted his attention and, accompanied by the older boy, he crossed the track to get it. At this time there was a long freight train of sixty-seven cars standing on the track west of where the boys crossed, and another train standing east
The learned court below granted a compulsory nonsuit which it subsequently refused to take off. It held that the boy was a trespasser, that the company was not required to have a rear brakeman to see that notice was given to trespassers, old or young, of the approach of the train, and that the death of the child was not caused by the negligence of the defendant company. The plaintiffs have taken this appeal.
The ninth and tenth assignments of error relate to the rejection of certain offers of testimony made by the plaintiffs on the trial of the cause. The ninth assignment alleges error in the rejection of the following offer: “I propose to show there was a playground there, and that these yards were a playground for the children for fifteen years and better, and that for the purpose of showing that care should have been exercised, but was not exercised in this particular instance.” This was to be followed by evidence that such use was made of the yards with the knowledge of the railroad authorities. The error complained of in the tenth assignment was the
Had the learned court below admitted the testimony contained in the offers it would have appeared, in addition to the other facts in the case, that the part of the defendant’s yard where the accident occurred had been used for fifteen years in connection with the adjacent ground as a public playground where children in large numbers had been accustomed to congregate and play with the knowledge of the railroad authorities. Under the circumstances we know of no authority, and none has been cited by counsel, which holds that under such circumstances the plaintiffs’ child was a trespasser to whom the defendant company owed only a duty as such, as held by the learned court below. The uncontroverted testimony in the case shows that this is a populous community where there are a great many children who have for many years used the ground adjacent to the railroad tracks as a playground, and had the testimony which was offered been admitted, it would have appeared that the playground, used for so many years by the children, included the part of the defendant’s grounds where the child lost its life. It is true, that the railroad company had the right to the exclusive use of the property where its tracks are located, and it might have insisted upon such exclusive use and prohibited the entry upon it by any other party. It could have excluded all parties from making any use of the property whatever. It could have denied the use of this pláce as a playground and have prohibited the children of the community from using it as such. We have uniformly held that a railroad company has the exclusive right to the use of its tracks, except at public crossings or places of permissive use by others. This rule has been rigidly
The legal principles controlling this case have been announced in many of our cases, among others Kay v. Penna. R. R. Co., 65 Pa. 269; Henderson v. Continental Refining Co., 219 Pa. 384; Milium v. Lehigh & Wilkes-Barre Coal Co., 225 Pa. 214; Steele v. Lake Shore & Michigan Southern R. R. Co., 238 Pa. 295.
Some if not all of the other assignments of error are defective and need not be considered.
The ninth and tenth assignments are sustained, and the judgment is reversed with a venire facias de novo.