from the Edgar Thompson Steel Works, but not over any defined path, as the defendant, for the purpose of preventing its use, was accustomed from time to time to take definite steps to wipe out any traces of the use of the tracks by pedestrians. That particular effort to punish trespassers was not made was perhaps due to the later existence of the Thirteenth Street foot bridge, which furnished a safe and convenient passage to and from the Edgar Thompson Works. But above all, the examination of photographs of the scene of the accident will disclose full reason for lack of consent by the railroad. The danger of crossing should be apparent to all.
A permissive crossing does not appear in some of plaintiff's testimony. Paul Barron, a police officer, was asked by plaintiff's counsel: 'Why doesn't the path show on the ground where it crosses the tracks?' He replied: 'Well, they don't use it so much; just now and then somebody * * * because they aren't to cross over there * * * .'
Robert Ford, on direct examination, was asked: 'Do you know of the railroad ever having attempted to keep people off there (the tracks)?' He answered: 'No. I heard people said before someone stop them; that was away before the depression.' Asked if he had seen any signs prohibiting crossing, he said he had, a long time ago.
Michael Stasko was asked whether he knew of any person being prevented from using the 'path', and stated that he had been told it was prohibited.
Proof of open, notorious and frequent use is only a part of what is required to show that a crossing is permissive. It is also necessary to prove that the circumstances indicate acquiescence by the railroad; and that does not appear in the instant case.
The instant case is almost identical in point of facts alleged with Musto v. Lehigh Valley Railroad, 327 Pa. 35, 48, 192 A. 888, 112 A.L.R. 842. In that case, the plaintiff did not go on the track but stood on the bank about six feet from it. In this position, an overhanging hooked projection, of the same description as the 'rod' in this case, seized the plaintiff and hurled him under the train. After judgment below the Supreme Court reversed it, holding that plaintiff was not entitled to recover in the absence of proof that the projection was a part of the train's load; that defendant's employees knew of the projection or were chargeable with knowledge of it, or that the train had not been carefully inspected within a reasonable time before the accident.
The present case differs from the Musto case, supra, only in that the plaintiff in that case was on the bank, and was a licensee, while in this case the plaintiff had entered the track; and in the Musto case no testimony was offered to prove that the projection was part of the load of the car, while in this case a vestige of proof was offered to show that the rod, or pipe, was part of the load. That testimony was based upon no sure foundation. The plaintiff asserted that he had been facing in the same direction as the train until just before he was struck; that upon turning, he saw the rod or pipe a foot from him and he was 'dumbfounded'; that in the instant between his sight of the rod and the rod striking him he was able, upon his counsel's leading question, to say that the load of the car was of like material to the 'rod'. If it be assumed that this testimony, if standing alone, was entitled to any consideration, credence of it should require careful weighing.
No tangible evidence was offered of the care, or lack of care, in loading the car. Some evidence was offered which tended to show, under general custom, it was examined a few miles from the place of the accident, but nothing to show any knowledge of the train crew as to any loading defect.
If the Court is correct in the conclusion that Victor Spevak was a trespasser when he entered upon the track of defendant, it follows that he has no right to recover. No wilful injury is claimed. But even if he were considered a licensee his testimony shows that he contributed to the accident by his own negligence. That testimony establishes that he was aware that his position on the track was dangerous. True, the danger he contemplated was not the cause of the accident, but he knew that he had subjected himself to danger. Had he remained back of the guarding ditch, or even back of the first rail, the accident would not have occurred. Or had he observed ordinary care he would not have been injured. That care would have required him to look in the direction the train was approaching rather than the direction in which it was going. Danger to him was all from that side.
As indicating opinions of the Courts of undue proximity to moving trains, the following cases are noted: Baltimore & Ohio Railroad Co. v. Schwindling, 101 Pa. 258, 47 Am.Rep. 706; Moore v. Philadelphia, W. & B. Railroad Co., 108 Pa. 359; Pennsylvania R.R. Co. v. Bell, 122 Pa. 58, 15 A. 561, 562.
In the first of the cases cited the Court held that a boy, standing so close to a train that he was injured by a part of the car out of place, could not recover. In the second case cited the plaintiff, seeing a passing train on one track, and no train on a parallel track, stepped between the tracks and was injured by an approaching engine. It was held that his position between tracks was negligence per se. In the third case cited the Court, by Mr. Justice Green, said: 'But, although not between the rails, he was so close to them that he was struck by some part of the approaching car, and he had no better right to place himself in such close proximity to the track than to stand between the rails of the track; and this was decided in the Case of Schwindling.'
In adopting the passage over the track, the plaintiff chose a dangerous crossing when a safe one was available. At the Bessemer Station, about two blocks from the Thirteenth Street bridge, was an underpass of the tracks. With such a choice possible, plaintiff, because he though it would require him to walk a slightly greater distance, was not relieved of the duty of choosing a safe passage.
The plaintiff in this case was very badly injured and the Court, therefore, has endeavored to give the defendant's motion very careful consideration. That consideration has lead to the conclusion that judgment must be entered for defendant.
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