From Casetext: Smarter Legal Research

Malischewski v. Pennsylvania Railroad

Supreme Court of Pennsylvania
Apr 18, 1947
52 A.2d 215 (Pa. 1947)


January 9, 1947.

April 18, 1947.

Negligence — Possessor of land — Condition — Trespassers — Children — Playgrounds — Railroads — Right of way.

1. In an action for injuries sustained by the minor plaintiff when he touched an overhead live wire, while playing on a standing coal car on defendant's tracks at a regular station it was Held that there was no evidence defendant was negligent. [554-7]

2. Restatement, Torts, section 339, cited. [555-6]

Argued January 9, 1947.


Appeals, Nos. 238 and 239, Jan. T., 1946, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1945, No. 670, in case of Albert P. Malischewski, Jr., a minor, by his guardian, Albert P. Malischewski, Sr., et al. v. The Pennsylvania Railroad Company et al. Judgment affirmed.

Trespass for personal injuries.

The facts are stated in the opinion, by FINLETTER, P. J., of the court below, as follows:

The plaintiff, a minor, and his parents sued for damages for personal injuries to the minor. Nonsuits were entered and motions to take them off are now before the Court.

The plaintiffs allege that the scene of the accident was a playground which the railroad permitted to be used by children and which it should have guarded to prevent them so using it.

There is as a matter of fact a playground maintained by the City called Kingsessing Playground. This adjoins the railroad to the South and is actively used for baseball and other games. But Kingsessing Playground is not the playground complained about by the plaintiffs. The playground which they charge existed is wholly on the right of way of the defendant. It is at Forty-ninth Street Station, one of the regular stations of the defendant railroad. The minor plaintiff had gotten upon the right of way and had seen a loaded coal car detached from a train, and left standing upon the tracks. He climbed upon the car and standing upon the coal was within reach of the live wire which conveyed the power to move the trains. The wire was in the proper place and condition for use for its purposes. The boy's arm came in contact with the wire and he was badly hurt.

The playground complained of by the plaintiffs must not be confused with the City's playground called Kingsessing Playground. The plaintiff's allegation is that there was another playground, a permissive one, which the railroad, the plaintiff argues, should have recognized as a playground and guarded in some way to prevent its use by children.

There are two difficulties in the plaintiff's position: one, that the right of way could not be used as a playground. The photographs must be seen to understand this statement. And, two, the rule that the railroad is not bound to fence its right of way.

As to the first subject, in the Restatement, Torts, section 339, it was said: "A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if (a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass."

Photographs of this so-called playground showed that there was nothing about the scene of the accident that looks like a playground. It is a railroad station and nothing else. It is entirely on the railroad right of way, tracks and passenger platforms. It is called Forty-ninth Street Station. The only level parts of the scene are the double line of railroad tracks and the platforms on either side of them for the use of passengers embarking or disembarking. On the south side the surface of the right of way is almost perpendicular. On the north side is a slope a few feet wide parallel with the passenger platform. Finally, the tracks are those of the defendant railroad's main line, with trains, passenger and freight, every half hour. The photographs show a double line of track but no siding on either side of the tracks. There is a platform about ten feet wide for the use of travelers. There are two or three sets of steps built by the railroad to give access to the platform and the trains. There are frequent trains, both passenger and freight, one every half hour. In no way can the scene of the accident be described as a playground.

In the Restatement's comment f. on the subject, it is said (p. 925): In "balancing [the] risk to children with [the] utility of [a] dangerous condition. . . . The public interest in the possessor's free use of his land for his own purposes is of great importance." See further comment on page 926.

An effort was made to show negligence on the part of the railroad and the City by proving that a gateway in a wire fence which separated the right of way from the Kingsessing Playground was in bad repair and permitted access to the station and platform. As a matter of fact the same access was also supplied by two sets of steps built by the railroad and certainly necessary to railroad uses. The defective gateway was not the proximate cause of the accident.

We may add that access to the passenger platform alongside of the tracks was of course necessary for the use of passengers. The so-called negligent opening in the wire fence simply gave additional access to the trains.

With regard to the fencing of the right of way, it is established by the cases that it is not obligatory on the part of the railroad to fence its right of way. Noonan v. P. R. R., 128 Pa. Super. 497; DiMarco v. P. R. R., 321 Pa. 568; Murdoch v. P. R. R., 150 Pa. Super. 156; Wright v. P. R. R., 314 Pa. 222; Tedesco v. Reading Co., 147 Pa. Super. 300.

The motions to take off the nonsuits are dismissed.

Plaintiffs appealed.

Charles Salkind, for appellants.

Theodore Voorhees, with him J. Peter Williams, Philip Price and Barnes, Dechert, Price, Smith Clark, for Pennsylvania Railroad Co., appellees.

I. Jerome Stern, Assistant City Solicitor, with him John J. K. Caskie, Assistant City Solicitor, and Frank F. Truscott, City Solicitor, for City of Philadelphia, appellee.

The judgment of the court below dismissing the motions to take off the nonsuits is affirmed on the opinion of President Judge FINLETTER.

Summaries of

Malischewski v. Pennsylvania Railroad

Supreme Court of Pennsylvania
Apr 18, 1947
52 A.2d 215 (Pa. 1947)
Case details for

Malischewski v. Pennsylvania Railroad

Case Details

Full title:Malischewski et al., Appellants, v. Pennsylvania Railroad Company et al

Court:Supreme Court of Pennsylvania

Date published: Apr 18, 1947


52 A.2d 215 (Pa. 1947)
52 A.2d 215

Citing Cases

Dugan v. Pennsylvania R. R. Co.

We think it does not. Thompson et al. v. Reading Company, 343 Pa. 585; Prokop et ux. v. Becker et al., 345…

Scarborough by Scarborough v. Lewis

Conversely, the City contends that at common law in Pennsylvania a duty was never imposed on a property owner…