This is an action for personal injuries caused by the plaintiff being run over on a siding of the defendant's railroad at Garfield, New Jersey. The plaintiff was a boy less than seven years old and had been playing marbles near the siding when a marble rolled under a car. The boy tried to reach the marble with his foot and while he was doing so the car was backed and his left leg was so badly hurt that it had to be cut off. A statute of New Jersey provides that "if any person shall be injured by an engine or car while walking, standing or playing on any railroad,. . . such person shall be deemed to have contributed to the injury sustained, and shall not recover therefor any damages from the company owning or operating said railroad," with a proviso that the section shall not apply to the crossing of a railroad at a lawful crossing. General Railroad Law, § 55; Compiled Stats., 1911, p. 4245, citing P.L. 1903, p. 673. The trial court, notwithstanding this statute, allowed the plaintiff to go to the jury and to obtain and keep a verdict, following such precedents in the circuit as Erie R.R. Co. v. Swiderski, 197 Fed. Rep. 521, and the judgment was affirmed by the Circuit Court of Appeals. 246 Fed. Rep. 800.
The ground of the decision seemingly is that the statute does not appear beyond doubt to apply to very young infants, although the word "playing" sufficiently indicates that it had minors in view, even if the absoluteness of the opening phrase "any person" were not enough to exclude the reading in of exceptions by the Court. The words of the statute seem to us to require a different construction from that adopted and they have been given their full literal meaning by the Supreme Court of the State in the case of an infant younger than the plaintiff. Barcolini v. Atlantic City & Shore R.R. Co., 82 N.J.L. 107. In view of the importance of that tribunal in New
There is no ground for the argument that the plaintiff was invited upon the tracks. Temptation is not always invitation. Delaware, Lackawanna & Western R.R. Co. v. Reich, 61 N.J.L. 635. Holbrook v. Aldrich, 168 Massachusetts, 15, 16. Romana v. Boston Elevated Ry. Co., 218 Massachusetts, 76. In this case too the plaintiff was not moved by the temptation, if any, offered by the cars, but by the wish to recover his marble. Therefore it is unnecessary to consider whether an express invitation would have affected the case, or what conclusion properly could be drawn from the fact that children had played in that neighborhood before and sometimes had been ordered away. The statute 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 safety from other undisclosed dangers, or to interrupt his own otherwise lawful occupations to provide for the chance that someone may be unlawfully there. Turess v. New York, Susquehanna & Western R.R. Co., 61 N.J.L. 314. Delaware, Lackawanna & Western R.R. Co. v. Reich; Holbrook v. Aldrich; Romana v. Boston Elevated Ry. Co., supra.
In the absence of a decision of the highest Court of New Jersey holding otherwise, MR. JUSTICE DAY and MR. JUSTICE CLARKE are of opinion that the Circuit Court of Appeals was right in holding the statute inapplicable to a child of seven, and therefore dissent.