A New Jersey statute denying to persons injured while walking,
standing, or playing on any railroad recovery of damages from the
company held to bar recovery in an action for personal injuries
Page 286 U. S. 441
sustained by a five-year-old boy while playing upon a railroad
bridge within the State. Following Ere R. Co. v. Hilt,
247 U. S. 97
286 U. S. 444
53 F.2d 846 reversed.
Certiorari, 284 U.S. 616, to review a judgment affirming a
judgment against the railroad company in an action in damages for
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
Michael Duplak, a boy five years of age, sustained personal
injuries, resulting in the loss of a leg, while playing upon a
railroad bridge built by petitioner over a canal in Passaic, New
Jersey. The track crossing the bridge was used only for drilling
freight cars -- that is, for pulling them into and out from
sidings. At the time of the accident, the boy was resting on his
right knee, looking down into the water of the canal, with his left
leg extended over the rail and under one of a string of cars
standing on the bridge. While he was in that position, other cars
were backed against the standing cars, causing them to move and run
over the boy's leg. A sign stood at one end of the bridge warning
of danger and forbidding all persons to go upon the bridge. It
appeared, that from time to time, boys had played upon the bridge
and had put diving boards on the lower tiers which were used during
the summer when the boys were swimming. Naturally, they were not in
use in December, when the accident happened.
Page 286 U. S. 442
In an action brought in the name of the boy and his parents in a
federal District Court for New Jersey, a verdict and judgment were
rendered against the petitioner, and affirmed on appeal by the
court of appeals. 53 F.2d 846.
It is unnecessary to discuss the question of negligence. The
case is ruled by a statute of the state of New Jersey, which makes
"for any person other than those connected with or employed upon
the railroad to walk along the tracks of any railroad except when
the same shall be laid upon a public highway; if any person shall
be injured by an engine or car while walking, standing or playing
on any railroad . . . , such person . . . shall not recover
therefor any damages from the company owning or operating said
Laws of New Jersey 1903, c. 257, p. 645, § 55. This statute has
been construed by the Supreme court of the state so as to deny
recovery for the injury of a child twenty-one months old who had
strayed upon the private right of way of a railroad company at a
place not a public crossing, and who was there struck by a car,
resulting in the loss of one of his legs. The court held that the
statute barred recovery by any person who walked, stood, or played
upon a railroad, and applied to all persons alike without
distinction as to age or physical or mental condition.
Barcolini v. Atlantic City & S. R. Co.,
107, 81 A. 494.
The rule of this decision was accepted and applied in Erie
R. Co. v. Hilt, 247 U. S. 97
was the case of a boy less than seven years old who had been
playing marbles near a siding of the railroad and was injured while
endeavoring to reach a marble which had rolled under a car standing
upon the siding. The Circuit Court of Appeals for the Third Circuit
sustained a recovery. This Court reversed on the New Jersey
Page 286 U. S. 443
as construed in the Barcolini
case. An attempt is made
to distinguish the instant case, but, upon comparison of the facts
here disclosed with those of the Barcolini
cases, we are unable to find any such difference as
to constitute a substantial basis for making a distinction.
We find it unnecessary to consider whether the conduct of the
railroad company amounted to an invitation to the boy to play upon
the bridge. There was certainly no express invitation. The right of
way was inclosed by a fence so far as that could be done without
interfering with the movement of cars, and a warning sign put up at
one end of the bridge. However, the point is settled by the state
law, and effectually disposed of by the Hilt
facts there were before the Court, but are not fully recited in the
opinion. As shown by the decision of the Court of Appeals (Erie
R. Co. v. Hilt,
246 F. 800, 801), there was open ground next
to the siding used as a driveway to the station and the siding.
This had been used as a playground by children, some very young,
who were accustomed to play on the open ground, on the siding
itself, and over and about the cars standing on the rails. The
practice was frequent and well known to the railroad. Children
sometimes were driven or ordered away, but with little effect,
since there was no barrier to keep them off. Notwithstanding that
the bearing of these facts was more strongly against the railroad
than is the case here, it was held that, in the face of the
statute, there could be no recovery. "The statute," this Court said
(p. 247 U. S.
"seemingly adopts, in an unqualified form, the policy of the
common law as understood, we believe in New Jersey, Massachusetts,
and some other states, that, while a landowner cannot intentionally
injure or lay traps for a person coming upon his premises without
license, he is not bound to provide for the trespasser's
Page 286 U. S. 444
safety from other undisclosed dangers, or to interrupt his own
otherwise lawful occupations to provide for the chance that some
one may be unlawfully there."
In support of that statement, Turess v. New York, Susq.
& West. R. Co.,
61 N.J.Law, 314, 40 A. 614, among other
cases, is cited. There, the court rejected the contention that the
railroad company was liable for an injury to a child who had come
upon the property of the company and had been injured while playing
on a turntable, which was claimed to be an attractive nuisance.
See also Kaproli v. Central R. Co. of N.J.
225, 143 A. 343. The effect of the Hilt
decision is to
accept the state statute, as construed by the state court, as
having put a negative upon the implied invitation and attractive
nuisance doctrines, and the same statute necessarily controls here,
whatever otherwise might be the rule.