O'Leary v. Pittsburgh & Lake Erie Railroad

Citations

• 248 Pa. 4
• 93 A. 771
• 1915 Pa. LEXIS 503

Syllabus

<p>Negligence — Railroads—Railroad yard — Use as playground — —Permissive use — Infants — Trespassers ■— Evidence — Case for jury.</p> <p>1..While a railroad company has the right to insist upon the exclusive use of its tracks, and any person, infant or adult, going upon them is a trespasser, yet when the children of a community have for many years constantly used the railroad yards as a playground, with the company’s knowledge and tacit acquiescence, the rights and duties of the parties change; children so using the yards and tracks are not trespassers, and it is the duty of the company to exercise such care towards them as the circumstances require.</p> <p>2. In an action against a railroad company by the parents of a four year old boy to recover damages for his death, where it appeared that plaintiffs lived near a large unenclosed yard of the defendant company; that a short distance from plaintiff’s residence and on the same side of such yard, was a piece of ground used by the children of the neighborhood as a common playground; that on the day of the accident deceased, after crossing several tracks and while attempting to recross into the playground, was struck by the last car of one of defendant’s trains which was being run backward with no brakeman on the rear car; and where there was admittedly no negligence on the part of the parents of the deceased, the trial judge erred in excluding testimony offered in behalf of the plaintiffs, to the effect that the playground in question had been used as such almost daily by numbers of children for many years with the knowledge and acquiescence of the defendant, and in entering a compulsory- nonsuit.</p>