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filed: April 4, 1989.


Appeal from the Order Entered July 10, 1988 in the Court of Common Pleas of Philadelphia County, Civil, No. 6169 November Term 1982.


Stephen H. Skale, Philadelphia, for appellants.

D. Donald Jamieson, Philadelphia, for appellee.

Cirillo, President Judge, and Beck and Tamilia, JJ.

Author: Cirillo

[ 383 Pa. Super. Page 253]

This is an appeal from an order of the Court of Common Pleas of Philadelphia County denying the removal of a compulsory non-suit and entering judgment in favor of the appellee Consolidated Rail Corporation [Conrail]. We affirm.

This case arises out of the death of plaintiffs/appellants John and Evelyn Gaul's son, Richard Gaul, on the evening of November 26, 1980. Richard was run over and killed by a train travelling westward from Philadelphia to Reading on Conrail's Norristown line. From testimony adduced at trial, it appears that at the time of the accident, Richard was lying motionless in the center of the track, with his head pointing to the east and his feet to the west, with his arms at his side, and his legs together. It was dark at the time of the accident, and Richard was not at a regular railroad crossing when he was struck. The Gauls brought suit against Conrail, alleging that it knew or should have known of Richard's presence in a place of imminent danger or peril, and that it willfully, wantonly, recklessly, and negligently failed to halt the train before it ran over him. Although they did not plead the doctrine of permissive crossing in their complaint, they were permitted to do so at trial.

[ 383 Pa. Super. Page 254]

The Gauls called as on cross-examination John Dillon, the operator of the train which hit Richard.*fn1 He testified that he saw what appeared to be a "stub tie" on the tracks approximately fifty to seventy-five feet ahead of the train, and began to slow the train. When he was thirty feet from the object, and travelling at a speed of approximately thirty miles per hour, he realized that the object was a person lying on his or her back. He then put the brake into the emergency position. The train came to a stop roughly one hundred to one hundred and fifty feet after the emergency brake was put on. Dillon also testified that there was a pathway, worn with use, on one side of the tracks in the area where Richard was lying, which he had seen in use "a couple times a week" over the six years in which he had been working that particular route for Conrail.

At the close of the Gauls' case on liability, Conrail moved for a non-suit, and its motion was granted by the court. The court found that the evidence produced was insufficient to show that a permissive crossing existed, and, further, even if the evidence had been sufficient, Richard was not using the crossing in a permissible manner, rather, he was lying on the tracks. Therefore, he was not entitled to the duty of care owed to persons using permissive crossings. The Gauls made a timely motion for removal of the non-suit, which was denied. The Gauls then appealed to this court.

[ 383 Pa. Super. Page 255]

On appeal, the Gauls argue that the evidence of permissive use of Conrail's railroad tracks was sufficient to present a jury question as to the existence of a permissive crossing. Secondly, they argue that the trial court erred in finding that because Richard was lying on the tracks rather than actively walking across them he was not owed the duty of care given a person in a permissive crossing. Lastly, they contend that even if the evidence presented at trial was insufficient to prove a permissive crossing, the court should have permitted the question of wanton or willful misconduct to go to the jury.

When considering an appeal from a trial court's refusal to remove a compulsory non-suit, the appellate court reviews the record in order to determine whether the trial court abused its discretion or committed an error of law. The trial court's refusal to remove the non-suit will be affirmed where the standard applicable to the entry of a non-suit was properly applied: the plaintiff must be given the benefit of all evidence favorable to him or her, together with all reasonable inferences which arise from that evidence. Any conflict in the evidence must be resolved in favor of the plaintiff. A non-suit will be entered only in clear cases -- an order granting a non-suit is proper only if the jury, viewing the evidence in the light most favorable to the plaintiff, could not reasonably conclude that the elements of the cause of action had not been established. Kuriger v. Cramer, 345 Pa. Super. 595, 602, 498 A.2d 1331, 1334-1335 (1985).

The Gauls' case is based in part on the contention that Richard was in fact within a permissive crossing when he was struck, and therefore that the duty owed to him would have been similar to that owed to a person within a regular railroad crossing: "A permissive crossing is a defined footpath leading to a crossing over railway tracks which is being habitually used, and which places upon the railway company the duty of care comparable to that required at a regular crossing." Hamley v. George, 365 Pa. 543, 548, 76 A.2d 181, 183 (1950). The Gauls argue that

[ 383 Pa. Super. Page 256]

    there was sufficient evidence presented to permit a jury to determine that a permissive crossing existed at the point at which Richard was seen lying on the tracks. They contend that the trial court erred in granting a non-suit on these grounds. In order to determine whether the trial court properly granted the non-suit, we must examine how the supreme court of this Commonwealth, and this court, have defined permissive crossings.

In Henry v. Pennsylvania Railroad Co., 368 Pa. 596, 84 A.2d 675 (1951), the supreme court defined a permissive crossing as an express or implied license to pass over the property of another, in this case, to pass over property of the railroad company. The crossing must be restricted to a well-defined location, and must be shown to be used frequently, notoriously, and continuously by the public. Id., 368 Pa. at 600, 84 A.2d at 677; see also Conn v. Pennsylvania Railroad Co., 288 Pa. 494, 502, 136 A. 779, 781 (1927). The court stated that "it is essential that the location of the permissive way be well defined." Id.; Conn, 288 Pa. at 502, 136 A. at 781. In Conn v. Pennsylvania Railroad Co., supra, that court had also made clear that the nature of the crossing must be public; it was not sufficient to show that boys going to and from activities in a city park located near the tracks used the way. Conn, 288 Pa. at 502, 136 A. at 781.

The determination of whether or not a permissive crossing exists is one to be made on the facts of each case. See, e.g., Shaw v. Pennsylvania Railroad Co., 374 Pa. 8, 11, 96 A.2d 923, 925 (1953) (permissive crossing found to exist where there was evidence of long-used, well-beaten, well-defined footpath leading from the east to tracks, and similar path leading from tracks to the west); Henry, 368 Pa. at 598, 84 A.2d at 676 (permissive crossing existed where planks were laid across railroad tracks to permit cars to pass over them, part of abutment leading to tracks was covered with ashes to build up rough roadway leading to tracks, ...

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