Leithold v. Philadelphia & Reading Railway Co.

Citations

• 47 Pa. Super. 137
• 1911 Pa. Super. LEXIS 126

Syllabus

<p>Negligence — Railroads—Infant.</p> <p>1. A railroad company cannot be held liable for the death of a child seven years old by the fact that the child went from a street through a gap or opening between the fences of two coal yards, sixty-five feet long, and eight feet wide on to defendant’s right of way, and was struck by a train 300 feet from the opening of the gap on the right of way, where there is no evidence to show that the railroad company owned, controlled or had any relations with the opening or gap, or that there was any defined path or crossing over the tracks in any direction from the opening of the gap. In such a case it is immaterial that grown persons and children had for a long period been in the habit of going through the gap and crossing, or walking along plaintiff’s tracks.</p> <p>2. The use of a railroad track, cutting or embankment, except at lawful crossings is exclusive for the company and its employees. Except at crossings where the public have a right of way a man who steps his foot upon a railroad track does so at his peril. The company has not only a right of way, but such right is exclusive at all times and for all purposes. The circumstance that the trespasser is a child of tender years cannot affect the application of the rule. The defendant owes him no greater duty than if he had been an adult. They are not subject to an obligation to take precautions against any class of persons who may walk on and along their tracks. The only duty which it owes to a trespasser is not to injure him wantonly or intentionally.</p>