Lead Opinion
Opinion by
In this action of trespass the plaintiffs, Frank A. Scibelli, by his father and guardian, Joseph A. Scibelli, and Joseph A. Scibelli and Marion Scibelli in their own right, sought to recover damages for injuries sustained by the minor plaintiff when he attempted to steal a ride on the defendant’s train. The jury returned a verdict in favor of the minor plaintiff for $14,500 and for his parents in the sum of $7,500. The defendant filed a motion for a new trial which was withdrawn and a motion for judgment non obstante veredicto which the court granted. Plaintiffs appeal from the entry of the judgment for defendant.
For a proper understanding of the issue involved it becomes essential to depict the locus in quo. The defendant, Pennsylvania Railroad Company, operated a single track spur line through the City of Lebanon, Pennsylvania between its yards at Twelfth Street and the plant of the Bethlehem Steel Company east of its yards. The tract of land where the accident occurred, colloquially termed “The Willows”, is bounded on the east by Seventh Street, on the west by Eighth Street and on the south by Willow Street. A short distance west of and parallel to Seventh Street lies Chapel Street which leads into and comes to an end at Willow Street.
The Willows is. an open area but there are residences and other buildings on both Eighth Street and Willow Street, the rear of which buildings face the open area. The Quittapahilla Creek flows in an east-west direction approximately in the center of The Willows. The defendant owned all of The Willows south of Quittapahilla Creek, and on January 16, 1951 leased all of this land with the exception of its spur line and right-of-way to parties known as Altenderfer and Mar-
Tracing the spur line in the direction the train moved on June 25, 1951, the day of the accident, it proceeded westwardly parallel to Willow Street and as it crossed Chapel Street curved to the right into The Willows in a northwesterly direction. Proceeding on this course through The Willows it crossed a railroad bridge over the Quittapahilla Creek, continued in a northwesterly direction and then curved to the left to intersect Eighth Street. The track may be considered as constituting an elongated “S” with the western end at Eighth Street and the eastern end at Chapel Street where the latter intersects Willow Street, a distance of 762% feet.
The testimony offered by the plaintiffs which must be interpreted most advantageously to them discloses that on June 25, 1951 the minor plaintiff, who was seven years of age, along with several other children, was playing in the vicinity of a group of mulberry trees which grow a short distance east of the spur line on the south side of the creek. At about 2 P.M. the defendant’s train, consisting of eleven cars drawn by a diesel shifter engine, entered The Willows from the east, travelling about as fast “as a person could walk”. The last three cars were empty low flat cars with built-up ends and no sides, commonly designated as billet cars. All five members of the crew were in the cab of the diesel engine. As the diesel passed the children they were on the south bank of the creek west of the track picking mulberries. Nellie Croesus, age 12, a cousin of the minor plaintiff, held onto his shirt as the locomotive went by and then thinking that the children would continue picking mulberries, she released him. After most
The theory upon which the plaintiffs principally relied to establish negligence was the so-called playground doctrine. The basis of liability in cases coming within that doctrine is that where an owner permits children to use his premises as a playground, a duty arises to exercise ordinary care in keeping the premises safe. In Fitzpatrick v. Penfield,
The playing of various games by children on the land adjoining the defendant’s right-of-way was of sufficient frequency to bring it within the accepted definition of a playground. There was also some testimony, when viewed in a light most favorable to the plaintiffs, tending to establish that the tracks themselves formed a part of the playground. Mrs. Lillian Manz, who had lived for 18 years in a dwelling house overlooking The Willows, said that the children would see who could walk the rail the longest without falling off. William W. Uhrich, the janitor of a building overlooking the playground, testified that during the wintertime the children would take cinders and cover them with snow and slide over the tracks. Nellie Croesus, a participant in the alleged games, stated that the children did not exactly play on the tracks but used to run across them. Ealph Smith, who lived in the vicinity for three and a half years, testified that the children played around the railroad bridge and all along the railroad and to the east of the railroad.
However, even if the evidence be regarded as sufficient to show tacit assent by the defendant to the use of its tracks as part of the playground, the testimony will not support the claim that thе defendant acquiesced in trespasses upon its trains. While there is some evidence that children had on occasions jumped on trains in the area of The Willows and had crossed over them when they were standing still for a period, the evidence was insufficient to establish this as a practice carried on with the knowledge and consent of the defendant. Considering the testimony most favorably to
Thus while the testimony may have made the defendant chargeable with acquiescence in the use of the track as part of the children’s playground, this is not true of the trains which were operated on the track. A necessary element of the playground doctrine is permission or acquiescence in the use of the owner’s property. The presence of this element gives to the children the status of gratuitous licensees. The license, however, doеs not extend beyond the use to which the express or implied permission applies: See Prokop et ux. v. Becker et al., supra, at p. 609; Dumanski v. City of Erie,
The case of Gawronski v. McAdoo,
Counsel for the plaintiffs, however, insist that even if the train may not be considered a playground, the defendant owed a duty of care toward minor trespassers because it should have foreseen that children might attempt to board the train and taken measures to prevent such conduct. It is claimed that if one of the crewmen had been stationed toward the rear of the train, the accident could have been prevented.
In the present case the evidence adduced by the plaintiffs was conflicting as to which car of the train the minor plaintiff attempted to board and the plaintiffs’ testimony showed that the sporadic attempts to board a train occurred all along the railroad, both north and south of the railroad bridge which was in the middle of the area. Obviously a crewman stationed on
Under the facts of this case the impracticable and burdensome task of exercising police supervision over its trains would be out of proportion to the risk to minor trespassers involved.
Judgment affirmed.
Notes
It ia stated in appellants’ brief tbat on prior occasions when a train passed through the area a crewman was posted toward the rear of the train to warn or deter children from boarding it. The record does not support this assertion. The testimony showed that the trains operating on the spur line to and from the Bethlehem Steel plant consisted of a varying number of cars and would
Cf. Restatement, Torts, §339(d).
Dissenting Opinion
Dissenting Opinion bt
The Majority Opinion treats this case as if the plaintiff Frank A. Scibelli were an adult. In point of fact, of course, he was at the time of the accident involved only seven years of age. And it is a matter of gratification, if not pride, that the laws of this enlightened country are intelligently moulded in statute and court decision to take cognizance of the immaturity of thought, the impulsiveness of movement and the lack of serious reflection in children of tender age.
The argument in the Majority Opinion sweeps like an express train over a high-speed main track of jurisprudence, hauling precedents and dicta which have nothing to do with the question before us. The controversy in this litigation involves a single-track spur track of the law which has its own rules, its own precedents and its own fitting appreciation of the unusual facts involved.
It does not assist in the determination of the problem involved in the appeal to make such assertions as: “.. . The operation of its trains by á railroad company over its right-of-way for the transportation of freight is an essential function. It is vital to commerce, and the public as well as the railroad company has an interest therein. The maintenance of service should not be made unduly burdensome.”
No one opposes these self-evident precepts. The question here is whether the duty asked of the railroad by the plaintiff would constitute an “unduly burden
The Majority Opinion well depicts the locus in quo of the episode which is the subject of this legal drama, but it does not portray the nature of the playground, which became the stage of the later tragedy. A more obvious rallying place for the spontaneous disportation of children could scarcely be imagined. “The Willows” abounded with natural and built-up phenomena which lent themselves to uninhibited fun. There were willow trees (from which the place got its name) among which the á-to-lá year old boys raced and ambuscaded in the game of “Cowboys and Indians!” Mulberry bushes flourished and supplied succulent fruit for the boys as they hid from their comrades in Hide and Seek. The Quittapahilla Creek, in which the lads waded and swam, rippled through the area. An improvised baseball diamond and football gridiron provided space for these two exciting sports. A small hill became a coasting incline down which the children slid on improvised sleds made from cardboard boxes thrown away by a Westinghouse store-close by. Sand in a sand-house supplied the building materials for tots constructing toy castles. The older boys fished from a bridge over the creek. They even made an acrobatic springboard from an abandoned bed spring weighted down on both sides by railroad sills. By leaping on to
But the highlight of the summer’s playday was the arrival of thе railroad train with its clanging bell, sonorous whistle and all the noise and spectacle that are a delight to the heart of eager childhood. This train passed twice a day: once in the morning and then again in the afternoon. It was not a fast express, but a slow moving affair that approached, stopped, lingered and then chugged on, almost with the leisurely gait of the legendary “Slow Train through Arkansas.” In passing through this children-thronged area the locomotive throttled down to the speed of a man walking. In the eyes of the children the train presented no more danger than a merry-go-round. When it stopped, they would leap aboard a car and with shouts of glee ride 5 or 10 feet and then hop off. For 18 years children had been doing this. Boys had hopped on the train, grown into manhood, and gone their respective adult ways, while the Willows playground still continued its gladsome, carnival-life existence for the young.
June 25,1951, was nо different from any other summer’s day at the Willows. It resounded with the shouts of carefree boys savoring the ecstasy of living that only the young can know. At 2 o’clock in the afternoon the welcoming thunder of the train was heard. Snorting like a pawing horse it came into view and then, amid the electric atmosphere which accompanies any moving object suddenly stopped, boys raced for their momentary thrill of riding the cars. Among the lads was little Frank Seibelli, seven, years old. His cousin Nellie sought to hold him still, but the gravitational excitement was too great for her clutching fingers to hold.
The Majority Opinion says that a railroad has a right of way for the transportation of freight. It is true it has a right to proceed unimpededly, but people also have the right to live, children have the right to play, and the summer has the right to pass without tragedy and without sorrow. It is not enough to say, as the Majority does;, that this was an “unfortunate accident,” and let it rest at that. The law is the guardian of truth and justice, of life and limb of the innocent. The accident in this case is not something that was unforeseeable. And in the affairs of men what is objectively foreseeable is factually preventable.
In 1933 the scholarly Justice Maxey (later Chief Justice) spoke to this very subject in the case of MacDougall v. Penna. Power & Light Co.,
If the law requires that “every approved invention” be used to lessen danger to others, with what more reason does it demand that simple physical care be exercised to save others from death or serious injury? If anyone of the five men of the train crew of the “Willow” train had thrown off his slothful inattention and stepped out to observe the youthful “invasion” of the cars, he would have seen Nellie seeking to restrain her infant cousin and, with an appropriate signal, the crewman could have held the train until Frank was removed from danger. This was a duty which the railroad company owed not only to humanity but to law as proclaimed by the courts of the land.
The Majority Opinion would seem to suggest that never has there been a set of circumstances like those in the case at bar and that, therefore, we must wait until this Court or some other Court throws the armor of protection around other Frank Scibellis before we can declare this Frank Scibelli entitled to redress. Even assuming (which I do not concede) that where an obvious infringement of personal rights are involved, we must wait on some other fountain of legislative or judicial learning to first proclaim the manner of correcting injustice while our own reservoir of power remains untouched, the fact is that this Court has already written
As far back as 1858 this Court allowed a recovery where a child was injured in circumstances which would suggest a far greater departure, on the part of the injured plaintiff, from prudence than might appear in this case. There, a boy 9 years of age crawled under railroad cars which were halted at a crossing. While beneath the cars the train started and the boy was seriously injurеd. It was argued in that case by the railroad company that the imprudence of the boy denied him and his parents a recovery. This Court held otherwise: “We cannot say it was, as a legal conclusion, and the jury did not find it as a conclusion of fact. Nay, indeed, it may be well doubted whether most boys, grown familiar with trains of cars by daily observation, would not, in like circumstances, have acted as this boy acted. To many active and enterprising children, risks not absolutely appalling, are attractive; especially if others are at hand to witness the daring-achievement. . . We cannot, therefore, account this boy’s conduct unnatural or extravagant.” (P. R. Co. v. Kelly,
In an early case (1886) our Court allowed a recovery under circumstances involving principles not dissimilar to those in the case at bar, (Phila., Baltimore and Wilmington R. R. Co. v. Layer,
Where a railroad company allows children to use its tracks as a playground, it must exercise toward them such care as the circumstances require. In O’Leary v. Pittsburgh & Lake Erie Railroad Company,
In Davies v. Delaware, Lackawanna and Western Railroad Company,
“We have held likewise that one fixed with a duty to regard the safety of children is obliged reasonably to anticipate they will do the ordinary and natural things which may be looked for from them under the circumstances. What we said in Hydraulic Works Co. v. Orr,
What were the ordinary and natural things that the crew could expect of the children here as the defendant’s train rolled through the Willows? The obvious answer is that it could be expected that the children would board the train for a short ride, not “steal a ride” as the Majority with unnecessary harshness puts it. The boys had been taking these rides for 18 years. Under these -circumstances- should not the'crew have exercised due care to keep-the boys off the cars, or, once on the train, get them off without injury?
The legal determination on this appeal is not whether the plaintiff' should recover. The issue is
The Majority seeks to differentiate the Gawronski case from the one at bar by saying: “For at least three-quarters of an hour before the accident the minor plaintiff and 14 other boys were seated on the freight car watching a ball game in full view of a number of defendant’s employees. Thus there was implied if not express permission to use the cars which customarily remained standing on the tracks for a considerable period of time.”
If three-quarters of an hour constitutes notice of danger in the Gawronski case, what must be said of the Scibelli case where the defendant’s employees knew for 18 years that boys were boarding trains?
The Majority Opinion in a footnote controverts the plaintiff’s counsel’s assertion that on previous trips a crewman was posted toward the rear of the train to warn or deter children. The record shows witness Uh-rich testifying as follows: “Q. Mr. Uhrich, did you ever observe where the brakeman would ride the train from time to time? A. Well, the brakeman, the morning runs there is one on the front and there would be one on the back, and at times he would be in the middle of the train, standing in a low car or sitting on a boxcar, and lots of times I would see him, especially in the summer months, that he would holler to some of the chil
James Manz testified: “Q. Did you notice when you were back there during those times that you played, were any of the men who worked on the train, where they were on the train? A. Well, some were in the cabin and sometimes there were some on the end of the train> on the last ear.
However, aside from this definitive evidence that the railroad company did post crewman at the rear of trains and also at the center of trains, the principle of law is unyielding that in order to discharge its responsibility of due care under the circumstances, the railroad was required to guard the train so as to protect children from harm.
The law is not as cold and bleak as the Majority would seem to suggest it is. In Hawk et ux v. P. R. R.,
The expense of safeguarding the children in The Willows would not be exorbitant. The distance in the play area along the defendant’s tracks was estimated to be only 375 feet. A fence along the right of way, as it passed through the Willows, would have kept children off the train. Did the defendant company exercise due care in not erecting such a fence? That was a question for the jury.
In the case of Patterson v. Palley Mfg. Co.,
The erection by the railroad company of a fence to keep children off the trains in the Willows would have entailed but a meager expense. And had such a fence been erected, the railroad could properly have defended that it usеd due care under the circumstances. But it would not even have had to build a fence in order to discharge its responsibility. There were only 11 cars in the train on June 25, 1951. Five men distributed throughout the length of the train would have given each guard only two and a fraction cars to watch. The cars involved were flat cars and thus offered a clean sweep of vision to their guardians, had they not somnolently ignored the duty which law and humanity imposed on them.
How can it possibly be said with any semblance of reason that the train crew exercised due care under the circumstances when with pinochle indolence they sat within the cab of the engine as the train passed through the fragile children?
The Majority says: “We have been referred to no case where a court has gone so far as to require a railroad company to patrol its tracks or police its trains with a sufficient number of guards to prevent children from аttempting to board them.”
When the Majority speaks of “patrolling tracks” it conveys an entirely erroneous conception of the duty that justice, law and common sense ask of the defendant. The entire playground area known as The Willows occupies only one city block from 7th to 8th Streets. How much would it cost the railroad to guard one block? How long does it take a train to cover 375 feet? Even travelling at the pace of a man’s walk. What the Majority has painted as a mobilization of police reserves to patrol a railroad amounts in point of reality to a short ride of some five minutes’ duration on a single track through a children’s playground!
In fact, no permanent guard at all is required or needed in The Willows to watch a short jerkwater train travel 375 feet twice a day. It would be enough for one of the train crew, as the train stops at The Willows, to jump off the engine and stand by the side of the track to watch the cars while the train pauses, and then hop aboard the last car after the other cars pass by. This is done at regular railroad crossings where trains stop and always at small railroad stations. If this simple procedure had been followed on June 25, 1951, the juvenile hurly-burly at The Willows would have been kept under control and Frank Scibelli would still have his own two legs on which to walk for the remainder of his journey through life.
The Majority is of the impression that because the train crews had on previous occasions made efforts to keep children from the train, this acquitted the crew of
In Altenbach v. Leh. Val. R. R. Co.,
In this case it is irrelevant that the railroad train crews had on previous occasions made efforts to keep children away from the train. The criterion of responsibility is what they did on June 25, 1951. In terms of
The principle of responsibility here is no diffеrent from that involved in the famous “turntable cases.” In one of those cases, Thompson v. Reading Co.,
We also laid down in that case the principle which should be the main track over which the train of responsibility should move in this case: “Young children have no foresight and scarcely any apprehensiveness of danger. This is a circumstance which those owning instrumentalities potential for harm must bear in mind, for it is every individual’s duty to use toward others what due care then and there requires. The question whether or not injury to a child legally incapable of negligence will import negligence to the owner or
How does the principle of law in this case differ from the one so solidly ballisted in the case of Hogan v. Etna Concrete Block Co.,
The Majority states that “a necessary element of the playground doctrine is permission or acquiescence in the use of the owner’s property.” The real test is not whether the owner acquiesced in the trespass but, knowing what was happening, whether he exercised ordinary care so as to prevent what was foreseeable. In Bartleson v. Glen Alden Co.,
In the same way there was a duty on the part of the defendant railroad company here to exercise due care to prevent children from climbing aboard its alluring train as it passed through The Willows.
Whether it did take reasonable precautions was a question submitted to the jury as follows: “Does the jury find that the defendant exercised ordinary care toward the minor plaintiff, Frank Scibelli?” The jury answered this question with a categorical No. What right do we have to nullify that answer?
Then the Majority states that while the defendant may have been “chargeable with acquiescence in the use of the track as part of the children’s playground, this is not true of the trains which operated on the track.” But is it possible to distinguish between the railroad track on the playground and the train on the railroad track on the playground? In the Bartleson case we very emphatically said: (p. 528) “There is no rule which requires that the dangerous condition must be on the ground or within reach of a minor. Such a distinction is artificial, without logic or experience to supрort it. What this distinction really drives at is the question of whether or not a defendant shall be held reasonably to anticipate that a child will bring himself within the orbit of the danger.”
When the train with its shining engine and clattering, thrilling cars came before the eyes of little Frank Scibelli, he felt an instinctive urge to climb aboard. The ladders on the cars invited his hands to seize the rungs and his feet to follow in mounting. Responding
In the case of Reichvalder v. Taylor Borough,
The railroad company presented no evidence at the trial. No member of the train crew was called to testify. In view of the fact that 5 men rode in the Diesel engine which was faced with transparent glass and passed within 10 feet of Frank Seibelli, the natural inference is that one or more of the crew saw Frank and his companions. This is an inference quite valuable to the plaintiff because the winning party in a jury trial is entitled to have, on review, the evidence considered in thе light most advantageously possible to his cause. In Hall et al. v. Vanderpool,
The jury found, in answer to specific interrogatories, that:
1. The Willows was a playground.
2. The railroad Company recognized it to be a playground.
3. The railroad company consented to the use of the Willows as a playground.
4. The railroad company did not exercise due care toward the plaintiff.
5. The minor plaintiff, Frank Seibelli, did nоt have sufficient capacity and understanding to see and appreciate the danger and avoid it.
6. Frank Seibelli did not commit any act of negligence which in any way contributed to the happening of the accident.
The record shows that each and everyone of these findings by the jury was supported by legal evidence. As a result of these findings the jury awarded to Frank Seibelli damages in the sum of $14,500 and to his parents damages in the sum of $7,500. The Majority wipes away this $22,000 verdict on a record that, in my judgment, comes within all the precedents of this Court involving accidents to minor children.
Frank Seibelli is still a boy. Bewildered as he must be by all that has happened to him in his tender years he probably will conclude, as he hobbles about dragging a steel and wooden shackle clamped to the stump of his leg, that Justice, like the men in the engine cab, is
Italics mine, unless otherwise indicated.