Baltimore & Ohio Railroad v. Schwindling

Mr. Justice Green

delivered the opinion of the court, November 20th 1883.

At the time the plaintiff received his injury he was standing on the platform of the defendant, so close to its edge that, according to the theory upon which the case was tried for the plaintiff, he was struck by a slight projection from the side of a passing freight car. He was not a passenger, he had no business of any kind with the defendant or any of its agents or employees, in fact he was a boy about five or six years of age amusing himself, looking at the moving train. He was not invited upon the platform by any agent of the defendant, and he was not engaged in the act of crossing either the track or the platform, at the time of the accident. He was simply loitering upon the edge of the platform with no other purpose or motive than his own personal enjoyment. His elder brother, his principal witness, testified that he told him to come back from where he was standing but he refused to do so. A passing car moving at a very slow rate of speed, not exceeding three or four miles an hour, with an iron step projecting a few inches from the side of the car, (as alleged by the plaintiff, though denied by the defendant) struck him and pulled him from the platform under the wheels of the car so that he was run over and injured. In these circumstances was there any right of recovery ? We think clearly not. We held in the case of Gillis v. Pennsylvania R. R. Co., 9 P. F. S. on p. 141, that, “ The platform of a railroad company at its station or stopping-place is in no sense a public highway. There is no dedication to public use as such. It is a structure erected expressly for the accommodation of passengers arriving and departing in the train. Being unenclosed, persons are al *262 lowed the privilege of walking over it for other purposes but they have no legal right to do so.” . . . . “ Still even a trespasser on the land of another can maintain an action for a wanton or intentional injury inflicted on him by the owner.” Again, on p. 143. “ The plaintiff may not have been technically a trespasser. The platform was open ; there was a general license to pass over it. But he was where he had no legal right to be. His presence there was in no way connected with the purposes for which the platform was constructed.” . . . “As to all such persons to whom they stood in such a relation as required care on their part, they were bound to have the structure strong enough to bear all who could stand on it. As to all others they were liable only for wanton or intentional injury. The plaintiff was on the spot merely to enjoy himself, to gratify his curiosity or to give vent to his patriotic feelings. The defendant had nothing to do with that.” Upon the foregoing principles, and upon the authority of many adjudicated cases cited in the opinion, and which it is therefore not necessary to review here, it was held there could be no recovery although the platform was insufficient to bear the weight of the persons who were upon it. It was conceded that there would have been a right to recover if the persons on the platform had been there as passengers or upon business connected with the defendant. In the latter case there would have been a violation of a duty owing by the defendant to the plaintiff. But there was no such duty because of the absence of the relation and hence there was no right of action. The controlling feature of the inquiry in all such cases is, was there a duty to the plaintiff which was violated by the defendant. If there was not there is no legal liability. This was essentially the distinction on which Railroad v. Hummel, 8 Wr. 375, was decided. On p. 379, Strong, J., said: “ Yet a jury cannot hold parties to a higher standard of care than the law requires, and they can not find anything negligence which is less than a failure to discharge a legal duty. If the law declares, as it does, that there is no duty resting upon any person to anticipate wrongful acts in others, and to take precautions against such acts, then the jury cannot say that a failure to take such precautions, is a failure in duty and negligence.” . . . . “Blowing the whistle of the locomotive, or making any other signal, was not a duty owed to the persons in the neighborhood, and consequently the fact that the whistle was not blown, nor a signal made, was no evidence of negligence.”

It will be perceived that it is entirely immaterial, in solving this question, whether the person injured is an adult or a child.

There is no question of contributory negligence involved in the inquiry, or essential to its consideration. If the defendant *263 did not owe the duty of protection against the injury suffered in the particular case, the omission to furnish such protection is not negligence, and there is no liability on that ground. Take the present case as an illustration. The only duty which is, or can be, claimed as having been violated, was a duty to protect the plaintiff, when standing upon the edge of the defendant’s platform, from injury from a car sfep projecting a few inches beyond the side of a slowly passing car. But how can any such duty arise out of such circumstances ? The plaintiff had no right to place himself in the position in which it was possible for him to be injured in such a manner, and the defendant was not bound to take precaution against such injury.

It is not denied that this would be true if the plaintiff were an adult, how then can it be otherwise than true as to a child. The absence of duty is precisely the same in either case, and the consequent absence of liability must be the same in both. It is quite true that young children can recover for injuries in circumstances in which adults cannot. But even children can not recover unless there is negligence, and there can be no negligence without a breach of duty. In Kay v. Pennsylvania R. R. Co., 15 P. F. S. on p. 276 we taid: “If there be no negligence on the part of the company then the incapacity of the child creates no liability, and its injury is its own misfortune which it must bear.” In Phila. & Read. R. R. Co. v. Spearin, 11 Wr. 300, when a child five years old suddenly ran across the track in front of an approaching engine and was struck and injured we said on p. 303: “ The engine in this case having safely passed the crossing appropriated to travelers, the engineer was under no duty to suppose any one would attempt to cross the track suddenly right in front of the engine, lie had a right to suppose a clear track, and was not guilty in failing to use precaution where he had no reason to expect interruption.” In Hargreaves v. Deacon, 25 Mich. 1 , the court said, the plaintiff being a child of tender years, “We have found no support for any rule which would protect those (child or adult) who go where they are not invited, but merely with express or tacit permission, from curiosity or motives of private convenience, in no way connected with business or other relations with the occupant.” In Morrisey v. Eastern Railroad Co., 126 Mass. 377 , the action was brought by a child four years of age who was injured while playing upon the track of the defendant. The court said, “ the plaintiff at the time of the accident was a mere intruder and trespasser upon the railroad track. No inducement or implied invitation to him to enter upon it had been held out. He was neither a passenger, nor on his way to become one, but was there merely-for his own amusement, and was using the track for a playground. The defendant corporation owed him no duty, *264 except the negative one not maliciously or with gross and reckless carelessness to run over him.”

In Gillespie v. McGowan, 4 Out. 144, we held that the owners of unenclosed lots in Philadelphia owed no duty of protection even to children against the danger of falling into an open well on the premises, although the field in question was crossed by frequented paths and used as a place of resort by children and adults. In Moore v. Phila. & Read. R. R. Co., 11 W. N. C. 310, we held there could be no recovery for the death of a boy ten years of age who was struck by an engine while walking on and along the track, on the ends of the cross-ties. We said, “ The circumstance that the trespasser in this instance was a boy ten years of age can not affect the application of the rule. The defendant owed him no greater duty than if he had been anadiilt.” In the case of Phila. & Read. R. R. Co. v. Heil, 5 W. N. C. 91, a child four years of age was struck, as it was claimed, by the projecting axle-box of a car, which extended one foot six inches beyond the outside of the rail, and three inches over the line of the street curb. He was on the public street-walk, where he had a right to be, but he was so close to the car that he was struck, as was supposed, by the projecting axle. We held that there was no sufficient evidence of negligence in these circumstances to submit the case to the jury. The cases of injuries to persons while crossing the track at permissive crossings are not analogous, and have no application. When the right to cross at a particular place is established, by permission or otherwise, the duty of ordinary care is incumbent upon the company. But in the present case the plaintiff was not engaged in the act of crossing the track or even the platform when he was injured, and therefore the cases on this subject are not in point. Upon the whole case we discover no evidence of any breach of duty owing by the defendant to the plaintiff, there was no pretence of wanton injury, and therefore the first and second points of the defendant should have been affirmed.

Judgment reversed.