Cauley v. Pittsburgh, Cincinnati & St. Louis Railway Co.

1. Except at public crossings, where the public has a right of way, a railroad company has the exclusive right to its track, and it owes no duty to the father of a child of tender years trespassing thereon, nor to the child itself. 2. Parents who permit their children to trespass upon a railroad track are guilty of contributory negligence, and the fact that the trespass was without the knowledge of the parents is not material. 3. One writ of error cannot be taken to separate judgments in two actions in different rights but tried together on the same evidence, and if so taken writ will be quashed.

Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 197. These were two actions on the case, one by John H. Cauley, a minor, by his father and next friend, John Cauley, and the other by the father, the said John Cauley, against the Pittsburgh, Cincinnati and St. Louis Railway Company, to recover damages for injuries to said minor, and loss of service, &c., caused .by the alleged negligence of the company’s servants. The defendants pleaded “Not guilty.” The docket entries in both cases were the same, and they were tried'together. At the trial, before Kirkpatrick, A. L. J., the plaintiff offered to prove by Bridget Cauley “that on the morning of the 20th of September 1879, she came out of her house on the hillside opposite the Point Bridge, and above the defendants’ railroad and switches; that she saw defendants’ freight cars being shifted down the road and in motion; that she saw and heard the conductor of the train standing on the track, and close to the nearest switch in that vicinity, and close to the moving train, calling to and ordering a number of boys that were on a sand-car loaded with sand, and ordering them to get out of the car, in a very authoritative tone of voice; that discovering at the time that this small boy, John H. Cauley, was among the boys on the car, she spoke out and protested against the boys having to get off the car, at least her boy, while the cars were in motion; that she remonstrated with the conductor, and asked that they should not be put off until the cars should be stopped; that the conductor persisted in ordering the boys to get off while the cars were in motion; that while the conductor was giving such orders to get off, the larger boys jumped off the car on different sides of the track, that they were running on, and that her little boy, John Henry Cauley, then seven years, two months and six days old, jumped off also, and fell under a wheel of the car, and his leg was bruised so that it had to be amputated. Further, to prove by the witness that after the cars had started, and while in motion, and when the conductor was giving said orders, that a brakeman on the cars came toward the boys in a manner which indicated that he was about to enforce the orders of the conductor, and this immediately before the boys jumped off the car. This for the purpose of showing that those in charge of the train of defendants had acted carelessly and negligently in the premises, and had ordered the boys to get off the train at an improper time, when it was in motion; and also to show negligence on part of defendants.” Defendants objected to the offer as incompetent, and irrelevant generally, and because 'the offer discloses the fact that the plaintiff, the boy injured, was a trespasser at the time of his injury, being in a place where he had no right to be, and it fails to disclose any act of negligence upon the part of any employee of the company for which the company is itself liable. Objections sustained; testimony excluded. Also to prove by Mrs. Cauley and others, that on the 20th of September last, at or near the south end of the Point Bridge, in the city of Pittsburgh, upon the railway track of the defendants, John Henry Cauley, a son of the witness, and of John Cauley, plaintiff in one of these suits on trial, a child of the age of seven years, was playing on a flat-car loaded with sand that was upon the switch of defendants’ road, and while he was upon said car one of the defendants’ freight conductors, and others, servants of defendants’ company, caused said car to be moved or shifted, and having by means of a locomotive engine in charge of defendants’ employees, under direction of said conductor, commenced to move or shift said car and others, running the train down the track, or switch, at a rapid rate of speed (the said conductor of defendants having charge of said locomotive and cars at the time), in a careless, reckless and negligent manner, ordered the said child, John Henry Cauley, to get off said cal', and he repeated said order with oaths, and in an authoritative manner, while the cars were in motion, so that the said John Henry Cauley, and others, hoys of tender years, who were on said car, and so ordered off by said conductor, became frightened and jumped off said car by reason of said order, and the said John H. Cauley, in jumping off said car, fell upon the track, where his left leg was crushed and broken by a wheel of said car running over it, so that it became necessary to amputate the said leg below the knee, crippling him for life, and that he was and is greatly injured thereby. For the purpose of proving negligence on the part of the defendants in the premises, to be followed by evidence that said conductor, at the time and place in question, was warned by said Mrs. Cauley of the danger of driving her said child off said car, while it was so in motion, and at the time said child was so ordered off said car. And that said child was, at the time in question, and had been before that time, playing upon said car in the city of Pittsburgh, adjacent to a crossing of the street and upon the street, in a thickly-populated district, near rolling-mills, factories, &c., and near where plaintiff’s family and others, employees of these mills reside; and that said child was upon the said car without the consent of his parents. And this all to prove negligence on the part of the defendants. Objected to for like reasons, and objections sustained and evidence excluded. There being no other evidence, the court, as requested by defendants, charged the jury that the verdict should be for the defendants, adding, at plaintiff’s request, that the reason in so charging was because the court ruled out the plaintiff’s offers of evidence. Verdict and judgment in each case for the defendants. Plaintiff took this wait, and alleged that the court erred in excluding the foregoing offers of evidence.