181 F. 83 | 3rd Cir. | 1910
The plaintiff, a boy some eight and a half years old, was injured while crossing the tracks of the defendant company between the cars of a parted freight train, at a point intermediate between certain streets in the city of Newark. The place where the accident occurred was the center of a city block or square, across which the defendant company has two tracks, running north and! south, and extending to a freight yard a short distance beyond. The land on the east side of the tracks, within the square, is entirely vacant, and nearly so on the west side; and on the east the space is frequently used by children as a playground. The square not being inclosed by fences, workmen and others are accustomed to cross freely from one side to the other, passing over the railroad tracks in doing so. Two well-defined diagonal paths, prior to the accident, had developed in this way on the east side, which converged and met at the tracks somewhere about the center of the square; and a simliar path starting just opposite to this across the tracks ran northwest to the side streets in that direction. This condition had existed for several years, and was well understood and made use of by persons living in the neighborhood.
On the day of the accident, the complainant and a companion, after watching some boys who were playing ball on the east side, started to cross the tracks, at the point where the two paths converged, in order to take the path on the other side, on their way home. Some cars of broken stone were being unloaded on the easterly track, and the stone was scattered in piles along it; and on the westerly track
It is to be noticed that the plaintiff was not struck and thrown down by the sudden movement imparted to the cars, but in some unexplained way his foot was caught by the rail and he was thrown forward; the wheels of the cars coming on him and cutting off his foot, while he lay in that position. It is not altogether the same therefore, as if the cars, being suddenly started, bumped into him and threw him down. The accident resulted because he tripped and fell, without which it apparently would not have occurred. But passing this by, if the company, as contended, was bound by long acquiescence to respect this crossing, and after opening the train at it was required, before closing it again, to give reasonable warning, the plaintiff had a right to rely on this, and was entitled to go in between the standing cars, without incurring the danger of being caught by any sudden movement of them. And even though the immediate occasion of the accident was the catching of the plaintiff’s foot under the rail, the result is not so remote but that it may be attributed to the neglect of the company, in failing to give due and timely warning, if that obligation in fact rested upon it.
It is the established rule in some jurisdictions that, where a railroad company for a long period of time has permitted the public to cross or travel along its right of way between certain points, it owes the duty of reasonable care to persons so "using it, and cannot approach the place with moving trains without giving due and customary warning. 33 Amr. & Eng. Cycl. Law (2d Ed.) 740, 741. This is the rule in Pennsylvania. Taylor v. Delaware & Hudson Co., 113 Pa. 162, 8 Atl. 43, 57 Am. Rep. 446. As it is in New York. Swift v. Railroad, 123 N. Y. 645, 25 N. E. 378. See, also, Harriman v. Pittsburg, etc., Railroad, 45 Ohio St. 11, 12 N. E. 451, 4 Am. St. Rep. 507, and Garner v. Trumbull, 94 Fed. 321, 36 C. C. A. 361. But it is not the rule in New Jersey, where, under such circumstances, persons using the crossing
The present case does not differ in principle from Pennsylvania R. R. v. Martin, 111 Fed. 586, 49 C. C. A. 474, 55 L. R. A. 361, decided by this court, in which the same rule was enunciated. The plaintiff there was injured by something which fell from a passing train, as he was walking along the right of way of the railroad on a customary path leading from a pottery plant, where he was employed in the city of Trenton, to the platform of an adjoining station. This path had been used for a long time by employés of the pottery plant in going to and from their work without objection on the'part of the railroad company; and on the occasion in question the plaintiff was going to the station to meet a. friend, who- was coming in on the train. It was contended that, under the circumstances, he was not on the defendants right of way by mere sufferance, but by implied invitation; but it was held that the acquiescence of the company in the adoption of the path along the right of way, as a means of going to and from the station, did not invite passengers or others, having business there to make use of it, and did not therefore impose upon the company any duty beyond what it owed to a mere licensee. See, also, Sutton v. West Jersey R. R. (N. J. Sup.) 73 Atl. 256; Riedel v. West Jersey R. R. (C. C. A.) 177 Fed. 374.
These cases, which are declaratory of' the local law as established by a long line of decisions of the highest courts of the state, recognized andl enforced in this court, are conclusive upon the plaintiff, and require an affirmance of the judgment. Assuming that there was a customary path, leading up on either side to the railroad tracks where the accident occurred, by which the people of the neighborhood were wont to pass across these uninclosed lots, and that this had existed for such a length of time that the company was affected with notice and presumed to 'acquiesce in it, the use was merely a permissive one, which under the New Jersey law imposed no higher duty than not to do that which was recklessly or willfully injurious. Nor was this duty modified by the fact that, on the occasion- in question, the train which was occupying one of the tracks, and which, was the cause of the accident, had been opened at the point where the paths converged, which fact cannot be wrested into an invitation or allurement to the plaintiff to go in between the cars in the course of crossing over, so as to require a warning from the trainmen in charge before closing the cars together. The use was still merely a permissive one, and the plaintiff stood in no higher relation to the company than that of a licensee, who took all the ordinary risks incident to the place and the business, among which was the moving or shifting of the cars occupying the
Judgment affirmed.