Moore v. Pennsylvania Railroad

1. A boy of ten years old, bright, intelligent, strong, healthy and of rather exceptional capacity, was sent by Ms parents upon an errand along a street in a populous suburb of a city on which a railroad track was constructed. Ho was run over and killed by a passing train, moving at a very rapid rate of speed without whistle or other signal. The only witness of the accident declared that he saw the boy walking upon the outer ends of the sleepers a single instant before he was struck. The street was of ample breadth and had sufficient side-walks, and the errand upon which the boy was sent did not require him to cross the track at the point where he was killed. In an action by the boy’s parents against the railroad company to recover damages for his death, the plaintiffs adduced evidence which showed the facts to be as above. The court thereupon awarded a nonsuit on the ground of the boy’s contributory negligence. Held, that this was not error. 3. Cauley ®. Pittsburgh, Cincinnati and St. Louis Eailway Co., 14 Norris 398, approved and followed.

Error to the Court of Common Pleas No. 3, of Philadelphia county: Of January Term 1881, No. 179. Trespass, by Thomas Moore and wife against the Pennsylvania Iiailroad Company, to recover damages for the death of their son, Thomas B. Moore, caused by the alleged negligence of the defendants’ servants. On the trial, before Ludlow, P. J., the evidence on behalf of the plaintiffs was to the following effect: — The defendant’s railroad runs along Trenton avenue, in a populous part of the suburb of Frankford, in the 25th ward of the city of Philadelphia, uninclosed by a fence. The avenue at the point in question is not paved, but there is a sidewalk for pedestrians. The plaintiffs occupied a house on the west side of Trenton avenue, above Orthodox street. About half-past eight o’clock on the evening of April 30th 1879, Mrs. Moore sent her boy, Thomas, a bright lad of nine years of age, on an errand to a store on Orthodox street, east of Trenton avenue, which made it necessary for him to cross the railroad. A few minutes later, his dead body was picked up on Orthodox street, on the west side of and near the track, where he had been dashed by the locomotive of the “ Cincinnati express,” bound south, wliich was running at a very rapid rate, being nine minutes late. At the moment he was struck a local train, coming in the opposite direction, was passing on the other track. A plan of the locality, put in evidence, showed that the boy at the time of the accident was upon the outer edge of the sleepers of the west line of tracks, at a point about twenty-five or thirty feet northward from Orthodox street, and about twenty to twenty-five feet from a telegraph pole against which he was thrown when struck by the engine. It thus appeared that he had not crossed the railroad at the time he was struck. Nicholas B. Thomas, the only -witness of the accident, testified as follows:— “ I live in Frankford ; I saw accident when Moore’s son was killed; it took place between 8 and 8% p. m.; Cincinnati express ; I was standing on Orthodox street on east side of track; side opposite his house; saw the through line, Cincinnati express, same time train leave Church street station and crossing in opposite direction ; did not take much notice of the up train; I walked across and watched Cincinnati train coming running at great rate of speed ; stood there and watched train running at street crossing; knowing the Cincinnati train was running at great rate of speed and would meet other at crossing, I squatted down to look under train running up .and saw boy on outer end of sleepers walking; the train then was right on him; train struck him; threw him against telegraph ¡role, and around it he went; had to wait for last car of up train to pass, and ran across to where boy was lying on side-walk; train running at thirty-five or forty miles an hour; she was not many seconds coming from ’Whitehall to Orthodox street; no whistle blown; no bell rung; up train was ringing bell; not down train; no fence along line of railroad; no gates; no automatic signals; populous neighborhood; Church street station is regular írankford station for up train; Cincinnati express did not stop there; up train reached crossing first; Cincinnati express was then one hundred yards from crossing; at time Cincinnati express reached crossing, all the up train had not passed ; I was standing on upper crossing, Orthodox street, towards New York; the lad was twenty or twenty-five feet north of telegraph pole when struck; walking on outer edge of sleepers towards Orthodox street. By the Judge: “ The boy was on the outer side, on the end of sleepers, walking,' at twenty to tAventy-five feet north of telegraph pole ; he was walking from sleeper to sleeper when I saw Mm; about a second of time from my sight of him and when he was struck ; he was a good height for a boy between nine and ten; he was on the side of the avenue next to iris father’s house. “ Question. What precise time was there between your glimpse of the boy and when he was struck ? Answer. Not more than a second ; it seemed as though the train was right on Mm; he was, of course, struck by the outer edge of the bumper. “ Telegraph pole about four or five feet from north line of Orthodox "street. On account of the terrific rate of speed of the train, I looked to see if any one coming along was in danger. He could have crossed anywhere, and at right angles; he could cross there as well as anywhere else; it was the shortest route to the store.” At the close of the plaintiff’s case, the judge, on motion of defendants, granted a nonsuit, which the court subsequently refused to take off. The plaintiff thereupon took this writ of error, assigning for error the refusal to take off the nonsuit, and filed, inter alia, the following specifications: (3) That it is not negligence for a child nine years of age to cross an unfenced railroad track in the middle of a street within twenty-five feet of a main thoroughfare, across which no gate has been placed, or other appliance for the protection of the people. (4) .Because there was no evidence of concurrent negligence on the part of the plaintiffs, or their child. (6) The question whether there was such contributory negligence was for the jury. The boy was not a trespasser; he had a right to cross the track at or near the highway crossing, and there being no affirmative proof that he was warned not to do so, or that he did not use ordinary care, the defendants are liable. Although the witness, N. B. Thomas, said the boy was walking from sleeper to sleeper, he also said “he could cross there as well as anywhere else; it was the shortest route to the store.” He was doubtless waiting for the up train to pass, and was caught as in a trap by the down train running at a terrible speed, behind time, and neither blowing a whistle nor ringing a bell. These facts were at least sufficient to take the case to the jury: Philadelphia & Trenton R. R. Co. v. Hagan, 11 Wright 244; Catawissa R. R. Co. v. Armstrong 2 P. F. Smith 282; Penna. R. R. Co. v. Kelly, 7 Cas. 372; Reeves v. R. R. Co., 6 Casey 454. This is the case of a trespasser, to whom a railroad company owes no duty. It is plain that the boy was either using the railroad track as a highway in walking south towards Orthodox street, instead of using Trenton avenue which, ran alongside; or, if he was in the act of crossing the track, he was doing so not at a crossing, and was, moreover, actually loitering on the track to wait for the up train to go by. There was, therefore, no evidence of negligence by the railroad company, and the nonsuit was righty granted: Goshorn v. Smith 8 W. N. C. 289; Cauley v. Railroad'- Go. 11 W. N. O. 164.