Appeal, No. 46, Jan. T., 1951, from order of Court of Common Pleas of Lackawanna County, May T., 1943, No. 459, in case of Owen Davies et ux., Parents and Trustee ad litem of Owen Davies, Jr., v. The Delaware Lackawanna and Western Railroad Company. Order affirmed.
Edward M. Murphy, for appellants, submitted a brief.
Edward W. Warren, O'Malley, Harris, Harris & Warren and Gomer W. Morgan, for appellee, submitted a brief.
Before Drew, C.j., Stern, Stearne, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE BELL
This appeal is from an order of the lower court dismissing plaintiffs' motion to remove a non-suit. Viewing the evidence in the light most favorable to plaintiffs, as we must where a non-suit has been entered: Szukics v. Ruch, 367 Pa. 646, 81 A.2d 903; Pennsylvania R.R. Co. v. J. Jacob Shannon & Co., 363 Pa. 438, 70 A.2d 321; the pertinent facts are as follows:
The decedent, aged 11, his sister Jane, and two other young children started to walk from the Davies home in Moscow, Pa., to Hollister, Pa., a town to the east. In order to reach their destination they walked eastwardly sometimes along the tracks and sometimes along the side of the tracks (referred to as the defendant's right of way). There were three tracks (6 rails) in the defendant's right of way. While there is no testimony
describing this right of way, the picture clearly shows on each side of the north and south tracks a few feet of shoulder with high sloping embankments. Jane and one of the children were talking on the south side of the tracks, while the decedent and the other child were walking on the north side of the tracks. As they walked, a freight train came along, likewise traveling east, on the center track. While the freight train was going by, a passenger train came along, traveling west, on the north track, and struck and killed the decedent. The view of decedent's 13 year old sister, who was the only witness who testified as to the accident, was completely obscured by the freight train. The tracks were straightaway for a quarter of a mile. There is no evidence of whether the boy was on the tracks or on the ties, or how or where he was struck, or when he was first seen by the train crew, or how fast the train was running. The train stopped about a quarter of a mile from the point of the accident.
The boy's body was found along the side of defendant's right of way, east of Martin's Crossing. Martin's Crossing is a dirt road which runs from a public highway through a field owned by a man named Martin, across the defendant's railroad tracks, ending in another field of Martin's on the other side of the tracks. The road was used solely by Mr. Martin and his employes in connection with the operation of his farm. There was no evidence that the boy was struck or killed at or on Martin's Crossing. Moreover, if the boy was struck where he fell, or if his body was thrown through the air after the impact, it could have been thrown by the train traveling westward only in a westwardly direction, and in either event, since his body was found east of the crossing the accident could not have happened at the crossing. It is therefore not necessary to decide what duty defendant would have owed decedent,
or whether defendant would have been liable if decedent had been struck at the crossing.
Appellants also contend that the court should have submitted to the jury the question of whether the place where appellants' son was struck was a playground. If the "playground rule" applies, then defendant must anticipate the presence of children on the track and would be liable for ordinary negligence; otherwise the child is in law a trespasser to whom the defendant is liable only for wilful or wanton negligence. The only evidence offered to establish a playground was that Mr. Davies and some children played a little touch football and a little baseball in two fields, one on each side of the railroad; that plaintiffs' daughter went to one of the fields to play and pick berries; and that one of the fields was used by children of the plaintiffs and of two other families as a playground. There was absolutely no evidence that the playground (if there was one) included the right ...