Ritchey v. Baltimore & Ohio Railroad

Hammond, J., delivered the opinion of the Court. The seven-year-old appellant was injured when his foot slipped under the wheels of a railroad freight car on which he had climbed. The accident occurred in Pennsylvania while the boy was visiting his grandmother. At the trial of his suit against the railroad brought in Baltimore, where he and his mother (his next friend) live, a verdict for the defendant was directed at the conclusion of the plaintiffs’ case.

Plaintiffs had served the defendant railroad with notice of intent to rely on foreign law, pursuant to Code (1957), Art. 35, Secs. 47-53, the Uniform Judicial Notice of Foreign Law Act, and the parties agree that the substantive law of Pennsylvania determines whether the direction of the verdict was proper. Under Pennsylvania law a railroad owes a trespasser, adult or infant, only the duty not to wilfully and wantonly injure him. In this sense, wilful means intentional and wanton signifies a reckless disregard of the rights of others. So, if an employee of the railroad becomes aware that a trespasser is in a position of immediate or imminent peril, he must exercise reasonable care to avoid injuring him or his conduct will be wilful and wanton under the law of Pennsylvania.

See Davies v. Del., L. & W. R. Co. (Pa.), 87 A. 2d 183 ; Cover v. Hershey Transit Co. (Pa.), 139 A. 266 ; Falchetti v. Pennsylvania R. Co. (Pa.), 160 A. 859 ; Green v. Reading Co. (C. A. 3rd), 183 F. 2d 716 ; Tedesco v. Reading Co. (Pa. Super.), 24 A. 2d 105 ; Reagan v. Reading Co. (Pa. Super.), 190 A. 412 . 1 ⁷² For situations in which the railroad employee saw the trespasser in a position of actual peril, or was put on notice that he was in such position, compare Peden v. Baltimore & O. R. Co. (Pa.), 188 A. 586 ; Petrowski v. Philadelphia & R. Ry. Co. (Pa.), 107 A. 381 ; Frederick v. Philadelphia Rapid Transit Co. (Pa.), 10 A. 2d 576 ; Cheslock v. Pittsburgh Rys.

Co. (Pa.), 69 A. 2d 108 ; Cover v. Hershey Transit Co., supra. The Pennsylvania Court has said that greater care must be used to protect an infant trespasser from harm after he is discovered than to an adult, who is presumed to be better able himself to anticipate and guard against his peril. Piepke v. Philadelphia & R. Ry. Co. (Pa.), 89 A. 124 ; Falchetti v. Pennsylvania R. Co., supra; Davies v. Del., L. & W. R. Co., supra.

This does not mean that an infant has a right to trespass or that the railroad owes him a greater duty than it does an adult before it discovers he is in peril. Maryland and Pennsylvania apply the same rule in determining the sufficiency of the evidence where a verdict has been directed or a judgment n. o. v. entered for the defendant. The evidence and all reasonable inferences from it will be weighed in the light most favorable to plaintiff and all conflicts resolved in his favor. Joffre v. Canada Dry, Inc., 222 Md. 1 ; Davies v. Del., D. & W. R. Co., supra, and Shaw v. Pennsylvania R. Co. (Pa.), 96 A. 2d 923 .

Considering the evidence as the rule requires (although appellants’ own witnesses disagreed on basic points), we find the plaintiffs to have offered testimony that the infant plaintiff was visiting his grandmother in Gooseberry, a small settlement near Hyndman, Pennsylvania. With two older boys he decided to go to a shack or play hut, which stood in the woods some distance diagonally across the tracks from his grandmother’s house. The hut had been put together by the neighborhood children. The three boys, wandering along a dirt road, reached a point some feet from the tracks where they stood and waved to the engineer of a long freight train as it went past them.

The engineer waved back. The engine disappeared around a curve and then the train stopped, blocking passage across the tracks. The boys waited five or ten minutes, discussing whether to climb over ⁷³ the train or wait until it left. Then the two older boys climbed onto a box car.

The infant appellant followed, seizing the highest grab iron he could reach. As he began to pull himself up, the train “gave a yank,” his foot slipped off the ladder and the wheel of the moving train crushed his foot. Ele did not hear any warning, any bell or whistle. The boys had played around the shack from time to time and on several occasions had waved at a passing train and had been waved to in return by a member of the train crew.

We think that under the Pennsylvania decisions, a finding that the railroad company violated any duty to the injured boy could not be properly predicated on the testimony produced in support of the plaintiffs’ claims. The boy concededly was in a position of safety when he exchanged waves with the engineer of the engine which passed him. Indeed, he was not even shown to have then been on the property of the railroad. No railroad employee ever saw him on the railroad property, much less in a position of peril.

Therefore, unless the claimants can show that the railroad was required to anticipate that the boy would leave a place of safety and move to a position of danger, they cannot prevail. The Pennsylvania courts have mollified the rigors of the undiscovered trespasser rule in two situations,