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ger station to the track and the township bridge. On the 14th of September 1866, Mr. Johnson and his party were coming from Pittsburg, on their way from Chicago, on a special train of the defendants, which was provided without compensation. The train was running on a special time-schedule, and at the request of Mr. Johnson, or some of his party, it was arranged that it should stop about five minutes at each of several points along the road, Johnstown amongst others, that the people might have an opportunity of seeing and saluting them. It was generally known through the newspapers that the party would pass Johnstown on that day, but no previous notice of the time of the arrival of the train had been given by the company. A clerk in the telegraph office, however, mentioned the time in a printing-office in Johnstown, and before the arrival of the train handbills had been posted through the town announcing the precise time of arrival, and a very large crowd of people assembled at the station and on the platform. The train at first stopped at the usual place near the passenger station, but it being supposed that in that position the people would not have a good opportunity to see and hear Mr. Johnson and his party, who were on the bindmost car, the train was immediately moved a short distance further east. The crowd pressed onwards, collecting in very great numbers near the hindmost car, on that part of the platform over the canal, when the platform gave way and all on it, with the plank and broken timbers, were precipitated into the canal, a depth of about twenty feet. The plaintiff was amongst those who thus fell. Two or three were instantly killed; some died afterwards from the effects of the fall, and many were more or less seriously injured. The plaintiff was badly hurt. He brought this suit to recover damages for the injuries then received.
There was no evidence at all on the 3d count, the defendant not having been on any passenger train of the defendants that day.
The court below directed the jury to find a verdict for defond
A. Kopelin and R. J. Johnston (with whom was D. McLaughlin), for plaintiff in error.—The defendants were bound to use their property so as not to endanger others : Broom's Leg. Max. 257. Had the plaintiff been a trespasser it would not have excused the defendant's negligence : 2 Redfield 193, 194; Mayne on Damages 4, 44; Pierce on Railways 285; C. & C. Railway v. Terry, 8 Ohio 570; Birge v. Gardner, 19 Conn. R. 507; Bird v. Holbrook, 4 Bing. 628; Brown v. Lynn, 7 Casey 510. There was negligence in keeping the platform in the condition in which it was, and the question whether there was concurring negligence was for the jury: 0. g. M. R. R. v. Gullett, 15 Ind. St. R. 487. Public policy requires that railroad companies should construct and keep their roads and appurtenances as well for the public interest as their own : Pierce on Railways 229; Bank of Pittsburg v. Whitehead, 10 Watts 402; Kemmerer v. Edelman, 11 Harris 143; Bush v. Johnston, Id. 209; Holmes v. Watson, 5 Casey 457; Fisher v. Knox, 1 Harris 625; Pittsburg v. Grier, 10 Id. 54; Id. 384; 1 Redfield on Railways 603-607; Pierce on Railways 244, 245, 487, 488. Railroad companies must keep their platforms in a safe condition for those who are on them either by their direct permission or through contract with others : Sawyer v. R. f. B. Railway, 27 Vt. Rep. 377; Marshall v. Y., N. & B. R. R., 11 C. B. 655; Gerhard v. Bates, 20 Eng. L. & Eq. 129; Broome on Com. Law 661, 679; Davis v. Plank Road Co., 27 Vt. 602; G. N. Railway v. Harrison, 14 Eng. L. & Eq. 189; P. f R. R. v. Derby, 14 How. 480; C. V. R. v. Hughes, 1 Jones 141; Curson v. Godley, 2 Casey 111; Grier v. Sampson, 3 Id. 183; Elliott v. Pray, 10 Allen 378. No privity need be shown: Pierce on Railways 270; Henderson v. Penna. R., 1 P. F. Smith 325; Sweeny v. 0. C. $. N. R., 10 Allen 368; Corby v. Hill, 4 C. B. N. S. 556. The platform was dedicated to public use: Banks v. S. Y. Railway, 32 Law J. Q. B. 26. One undertaking an act by which the conduct of others may be properly governed, is bound to do it so that no one will suffer by his negligence: Sweeny v. 0. C. f. N. R., supra; Story on Bailments 11; Parsons on Contracts, vol. 1, 372, 582–589; Smith on Contracts 185; 1 Smith's Leading Cases 244; Coggs v. Bernard, 2 Ld. Raym. 909; 1 Redfield on Railways 194, note 6, 604; Thomas v. Winchester, 2 Selden 397. When the gist of the action is negligence it is a question for the jury: 1 Redfield on Railways 544, 545; Pierce on Railways 282; 2 Hilliard on Torts 398, 409; Beatty v. Gilmore, 4 Harris 463; Beach v. Parmeter, 11 Id. 196; L. f. B. R. Co. v. Chenowith, 2 P. F. Smith 382; McGrew v. Stone, 3 Id. 436. Opening depots and platforms is primâ facie a license to all to enter, and the entry is not a trespass : Pierce on Railways 251, &c.; Com. v. Power, 7 Met. 596; Hall v. Power, 12 Id. 482; 1 Redfield on Railways 94. The defendants should have anticipated the gathering and provided against accident: Jones v. Bird, 5 B. & A. 837; Beers v. Housatonic R. Co., 19 Conn. 566, 569; Park v. O'Brien, 23 Id. 347; 0. f. M. R. v. Gullett, supra ; Burnham v. City of Boston, 10 Allen 290; Elliott v. Pray, Id. 378; Sweeny v. 0. C. f. N. R. Co., supra. A trespasser even would recover under such circumstances : Mayne on Damages 42, 43; McCully v. Clarke, 4 Wright 399. The case should have been submitted to the jury: 3 Bl. Com. 379; Sedgwick on Statutory and Const. Law 542.
C. L. Pershing and J. Scott, for defendants in error.—There was no contract relation which imposed any duty on the defendants: R. R. Co. v. Skinner, 7 Harris 298; R. R. Co. v. Hummell, 8 Wright 377; R. R. Co. v. Norton, 12 IIarris 465; Kelly v. Penna. R. R. Co., 7 Casey 372; Knight v. Abert, 6 Barr 472 ; Barker v. Midland R., 36 Eng. L. & Eq. 258; Pickford v. Grand Junction R., 8 M. & W. 372; Lucas v. T. f. N. B. R., 6 Gray 66; Brand v. T. & S. R., 8 Barb. 378; Lygo v. Newbold, 9 Exch. Rep. 302; Binks v. S. Y. R. Co., 32 Law Jour. N. S. 26; Winterbottom v. Wright, 10 M. & W. 109; Com. v. Power, 7 Metc. 602; Hall v. Power, 12 Id. 485; Heil v. Glanding, 6 Wright 493; Brooks v. Buffalo R. R., 25 Barb. 600. The defendants are not within the maxim sic utere tuo, &c.: Sweeny v. 0. C. f N. R., supra; Southcote v. Stanley, 1 H. & N. 247; Howland v. Vincent, 10 Metc. 371, 1 Rol. Ab. 88; Adams v. Reeves, 11 Barb. 398. The defendants were not bound to keep the platform more than sufficient for their ordinary business : Withers v. N. K. R., 3 H. & N. 971; Blyth v. Birmingham W. Works, 36 Eng. L. & Eq. 506, P., Ft. W. fo C. R., 3 P. F. Smith 512. The court properly ruled the case as a question of law: 1 Redfield on Railways 546; Catawissa R. R. v. Armstrong, 2 P. F. Smith 282.
The opinion of the court was delivered by
SIARSWOOD, J.-The platform of a railroad company at its stativn or stopping-place is in no sense a public highway. There is no dedication to public use as such. It is a structure erected expressly for the accommodation of passengers arriving and departing in the train. Being unenclosed, persons are allowed the privilege of walking over it for other purposes, but they have no legal right to do so. The servants of the company, after requesting them to leave, can remove them by whatever force may be necessary: Barker v. The Midland Railway Co., 18 C. B. 46; Corinth v. Power, 7 Metc. 596; Hall v. Power, 12 Id. 485; Harris v. Stevens, 31 Verm. 79. Still, even a trespasser on the land of another can maintain an action for a wanton or intentional injury inflicted on him by the owner. It will appear on an examination of the interesting and elaborate discussion in the English courts of the question whether an action could be supported by such a trespasser for personal harm occasioned by a spring-gun, mantrap or dog-spike, set on the grounds of the defendant, in which it was determined that where there was no proper warning given, such an action well lies, that it was rested mainly on the ground that a man cannot lawfully do indirectly that which it is unlawful for him to do directly. He cannot shoot or maim or set a ferocious dog upon a mere trespasser. He shall not then place a concealed machine where it will be likely to do the same thing, or let such a dog loose in his grounds without warning: Deane v. Clayton, 7 Taunt. 489; Ilott v. Wilkes, 3 B. & Ald. 304; Bird v. Holbrook, 4 Bing. 628. It is, however, equally well settled that the owner of property is not liable to a trespasser, or to one who is on it by mere permission or sufferance, for negligence of himself or servants, or for that which would be a nuisance if it were in a public street or common, where all persons had a legal right to be without question as to their purpose or business.
It will be unnecessary to pass in review all the cases which in England and this country establish the principle, or to examine and reconcile if possible those which seem to conflict with it. It is put in many of them on the grounds of contributory negligence in the trespasser. It is plain, however, that the two principles are entirely independent of each other, though they do in fact often concur, and thereby have made confusion. In Hounsell v. Smith, 7 C. B. N. S. 731, the plaintiff fell down a quarry, which was left open and unguarded on the unenclosed waste lands of the defendant, over which, in passing from one public highway to another, the public were freely allowed to walk : it was held that the defendant, the owner, was under no legal obligation to fence the excavation, unless it was made so near to a public road or way as
to constitute a public nuisance, or, in other words, to render the lawful use of such public road dangerous. “No right is alleged,” says Mr. Justice WILLIAMS, “it is merely stated that the owners allowed all persons who chose to do so, for recreation or for business, to go upon the waste without complaint; that they were not churlish enough to interfere with any person who went there. He must take the permission with its concomitant conditions, and it may be, perils.” This decision was cited with approbation and affirmed in Binks v. The South Yorkshire Railway and River Dun Co., 3 Best & Sm. 244. But a much stronger case, and more directly in point, is Lygo v. Newbold, 9 Exch. 302. It was there decided that even an express permission given to the plaintiff by the defendant's servant to occupy a place to which she had no right would not cast responsibility on the master. The plaintiff in that case, without the defendant's authority, but by the permission of his servant, rode in a cart along with some goods which the defendant had contracted to carry for her. The cart, being insufficient, broke down, and the plaintiff was injured. It was held that she could not recover.
Thus the three superior courts of England, the Common Pleas, Queen's Bench and Exchequer, concur in this doctrine.
But our own case of Knight v. Abert, 6 Barr 472, is on all fours with them. It was there decided that though no action lies in Pennsylvania for trespass by cattle pasturing on unenclosed woodland, yet, that not being a matter of right, the owner of land is not liable for an injury sustained by such cattle falling into a hole dug by him within the bounds of his land and left unenclosed. “He who suffers his cattle to go at large," says C. J. GIBSON, “takes upon himself the risks incident to it.” So must a person, using by permission or sufferance the private property of another, take upon himself the risks incident to it. To the same effect, if closely examined, is The Philadelphia and Reading Railroad Company v. Hummel, 8 Wright 378. The plaintiff below in that case was a boy of tender years, to whom no contributory negligence could be imputed. He was on the track of a railroad, not at a crossing. It was held that the railroad company, as to persons so on the track, were not bound to give any warning at starting. “Blowing the whistle of the locomotive, or making any other signal,” said Mr. Justice STRONG, “was not a duty owed to the persons in the neighborhood, and consequently