
    Gillis versus The Pennsylvania Railroad Company.
    1. The platform of a railroad company at a station is in no sense a public highway. There is no dedication to public use as such.
    2. The platform is for the accommodation of passengers, and being unenclosed, persons have the privilege but have not the legal right of walking over it for other purposes.
    3. After requesting such persons to leave, the company may remove them by whatever force is necessary.
    4. A trespasser may maintain an action for a wanton or intentional injury by the owner of the land.
    5. 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 in a public street or common.
    6. To persons who come upon a platform to meet or part with passengers, or who stand in such relation to the company as requires care, the company is bound to have the structure strong enough to bear all who could stand upon it.
    7. The owner of a house is bound to have the approach to it sufficient for all visitors on business or otherwise, but if a crowd gathers on it to witness a passing- parade, &e., and it breaks down, though not sufficient even for its ordinary use, he is not liable to one of the crowd who might be injured.
    May 29th 1868.
    At Philadelphia.
    Before Strong, Read, Agnew and Sharswood, JJ.
    Error to the Court of Common Pleas of Oambria county: Of May Term 1868.
    This was an action on the case commenced, November 20th 1866, by David Gillis against the Pennsylvania Railroad Company for injuries sustained by him by the breaking down of a platform of the defendants at the Johnstown station, Cambria county.
    The declaration contained four counts. The first count charged that the defendants, being a corporation for conveying freight and passengers, and having the sole control of the passenger depots, platforms, &e., along the road for the mutual accommodation of themselves and the public, built a platform at the Johnstown station, bridging a chasm over the bed of an abandoned canal, on which large numbers of people were in the habit of congregating, “as a matter of general custom;” and it was the duty of the defendant to construct the platform so as to make it safe and keep it in good repair; that it had come to the knowledge of the defendants that the timbers of the platform were rotten, and “ insufficient to support a large multitude of people,” but that they notwithstanding insufficiently repaired it; that on the 14th of September 1866, “ on the occasion of the visit of Andrew Johnson, President, &c., and suite, to Johnstown,” the defendants furnished a special train, and made a special time-schedule for their accommodation, by which the train was required to stop a longer time than usual for passenger trains at Johnstown, &c., the company notifying the people at Johnstown and vicinity of the time of arrival and departure of the train at Johnstown, the stoppages being made by the direction of the defendants to give the people an opportunity of receiving Mr. Johnson and hearing him; that it had been publicly made known that wherever Mr. Johnson and his company had stopped large numbers of people congregated, and thereupon it became the duty of the defendants “ to have the platform aforesaid made sufficiently strong to bear and uphold as many people as might congregate thereon on the occasion aforesaid;” that the defendants, knowing the insecure condition of the platform, did not use due diligence to have it made secure, but permitted and invited “ a large multitude of people to congregate” thereon without notifying them or the plaintiff of its insecure condition; that the platform broke and precipitated the multitude with the plaintiff into the chasm, by which' he was injured and wounded. The second count averred that the company carried Mr. Johnson and his party by agreement and for hire, and that the platform was part of the company’s highway; the count was otherwise substantially as the first. The fourth count averred that the plaintiff went to the station on the occasion of Mr. Johnson’s visit, at the defendants’ special instance and request; that the train was not stopped at the usual place of stopping, but about two hundred yards beyond it,' without giving notice to the people assembled, and to the plaintiff, and that the “ plaintiff and the multitude were compelled to change their position to get a better view of the party,” thereby causing them to congregate more numerously “on the insecure part of the platform;” — otherwise substantially as in the first count. The third count averred that the plaintiff was a passenger on the train, and got off the train on to the platform which broke, &c.
    The facts necessary for an understanding of this case appear to be substantially the following:—
    At or near the Johnstown station of the defendants, their railroad crosses the canal constructed by the state, at an angle of about 25 degrees — the canal being now abandoned; the passenger station and its platform are further west than the canal; eastwardly of this platform is a township bridge over the canal; that part of the canal between the railroad track and the township bridge is also planked over, making a continuous platform from the passenger 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 Johns-town, 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 hindmost 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 a very large amount of evidence bearing on the averments in the 1st, 2d and 4th counts of the declaration.
    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 plaintiff submitted 27 points, which were all answered substantially in the negative.
    The defendants submitted 2 points, which were approved. It is not necessary to give the points.
    The charge of Judge Taylor, in connection with the foregoing statement, will give an understanding of the ease both as to the facts and the principles of law ruled by him. The charge was as follows:—
    “ This is an action on the case in which David Grillis, the plaintiff, claims from the defendant damages for injuries to his person, caused by the falling of the platform under the crowd which assembled at the station in Johnstown on the 14th September 1866, on the occasion of President Johnson passing through that place.
    
      “ The evidence shows that the time of the arrival of the special train at the station in Johnstown had been made known, and that a large crowd, described on the plaintiff’s declaration as ‘ a large multitude of people,’ had been attracted there to see the President, or the distinguished gentlemen composing his party. The train was run a short distance beyond the station-house for the purpose, it would seem, of affording the party a better opportunity of being seen and heard from the rear platform of the hindmost car, which was stopped near where the track crosses the old canal, at an angle of about 25 degrees, that part of the canal between the railroad track and a township bridge over it, being, also bridged by the railroad company, and laid with plank, constituting part of their platform. When it was observed that the train was passing the station-house, the anxious and restless crowd followed it, collecting behind or near the rear car, upon that part of the platform which covered the canal, until it gave way beneath the weight of their increasing numbers, precipitating all upon it, with the plank and broken timbers, into the chasm that opened below, a depth of about twenty feet. The result can be readily imagined. Two or three were killed almost instantly; nearly all of them were more or less injured; some, as it proved after-wards, fatally; many of them seriously. The plaintiff, David Grillis, went down with them; he was soon discovered by his friends, bleeding and in an unconscious state, and extricated and taken home, where he was confined to his bed for about two weeks. * * * * *
    “ When it is remembered, as it has been here stated, that there ai;e over two hundred actions pending in this court, brought by as many suitors for injuries occasioned by the same disaster, all depending upon the same questions of law and fact involved here, and all of which will be virtually determined by the final result of this case, it cannot be doubted that this is the most important cause that has ever been tried in the Court of Common Pleas of this county, or within the district, and, as such, it claims our most careful consideration.
    “ While the cause is thus important in view of the immense amount depending upon the questions it will settle, it is one, in some respects, of first impression. In the whole range of judicial decision, so far as our research has extended, or the research of the learned counsel has aided us, we find no case precisely like it. We must determine it, therefore, by the application of general principles, or principles recognised in analogous cases. Claims against railroad companies for personal injuries have usually ai'isen where there has been the relation or privity existing between a passenger and a common carrier of passengers, or where the injury complained of has been directly inflicted upon one not a passenger, but done negligently when he was in the prosecution and enjoyment of his legal rights, and chargeable himself with no concurring negligence. These have been the most usual occasions or grounds of claim.
    “ Where the privity and contract relation of a passenger and a common carrier exists, the law, for reasons of policy, holds the carrier to the strictest accountability for the safety of the passenger, in receiving, carrying and discharging him. In all these things the carrier, in the absence of concurring negligence on the part of the passenger, is answerable for any casualty resulting in injury, against which the utmost human foresight, skill and care might have provided. But this relation, although one count in the declaration avers it, it is not here pretended existed between the parties in this case. The plaintiff was not a passenger upon, or getting on or off the cars, or there for that purpose. There was no train that received or discharged passengers, passing, or there at that time. The special train received none. The plaintiff and all the others were there for their own purposes, to gratify their curiosity to see the President and his party.
    “ Nor was the plaintiff, at the time of the accident, where he or the others injured with him might, irrespective of any contract relation with the railroad company, claim a legal right to be;— but where, if he and they were not trespassers, it was because they were there by the permission or license of the defendant; — . there, as Gibson, O. J., expresses it in Knight v. Abert, 6 Barr 472, in the enjoyment of ‘an immunity, not a privilege,’ or a right. This is abundantly clear upon many authorities. The proof fails to show that they were there by the invitation, or at the request of the defendant. They were, not as in Bauch v. Lloyd and Hill, and Kelly v. The Pennsylvania Bailroad Company, recent Pennsylvania cases, and other cases of that class, upon a public highway. There was a public road crossing some distance west of that point, and also one east of it; but there was none at that place. A railroad is not a highway in a sense which gives to the public a legal right to use it for other purposes, or to be upon it, except at public crossings, or where a public road crosses it, or occupies a portion of its track: Bailroad Company v. Skinner, 7 Harris 298, and Philadelphia and Beading Bailroad Company». Hummel, 8 Wright 374. The railroad company have not since rebuilt the broken portion of the platform, but have merely fenced the opening, to prevent passengers, or others having business there, from falling into it. They might have left it open at first; — and no one has a legal right to claim, that, for his benefit alone, they shall rebuild or replank it. This is at their own option, as they may find it necessary or not for their own purposes or convenience, in the use of their franchise.
    “ So, the plaintiff was there, in a place in which the public at large could claim no legal right to be, not only not a passenger, but in no other business relation implying privity with the defendant. There is no evidence that he and the others who went down with the platform, were there at the request of the railroad company. They were there of their own volition, voluntarily; and for a purpose purely their own, to gratify a curiosity to see or hear the President or his party.
    
      “ It is observable, also, that the plaintiff and the others who unfortunately there became sufferers with them, were not injured by any direct act of the defendant or its agents. They were not struck or injured by the special train, or any train, or car, or injured by any act of the company or its agents, in the use of its franchises, cars or machinery. They were crushed beneath a platform which their own weight and numbers broke down.
    
      “ The claim is for consequential damages, or damages for a consequential injury, or for an injury resulting directly from the plaintiff’s own act, on the assumed ground that it was the duty of the defendant to have protected him. ‘ A man must use his property so as not to incommode his neighbors; but the maxim extends only to neighbors who do not interfere with it, or enter upon it.’ This is the language of a very distinguished judge, in Knight v. Abert; a case which has since, and recently, been referred to with approval by the judges of the same court; and which, it seems to us, furnishes legal principles applicable to the present case. There is no difference between a railroad company, sought to be held liable for its acts, or the use of its property, and any individual in like circumstances; or where the claim is outside of any special duty imposed by the law of its creation, or of obligations arising upon contract under the law of .bailment.
    “ Having premised all this, we are brought to the question at issue between these parties, and prepared to consider and decide it, in the light of all the plainly proven circumstances and relations of the parties. The question is substantially stated in the averments in the principal counts of the plaintiff’s narr. The third count, it is true, is not supported by any proof; nor is it claimed to be. The other counts state the same question substantially, if we except what is averred as to the relation between the President and the railroad company, in reference to the special train, some of which, as we have already noticed, are not sustained by any proof, and all of which we treat as surplusage in presenting the real question at issue, or as introductory or preparatory of it. The narr., after what we thus treat as introductory matter, avers that ‘ a large multitude of people’ had assembled on the platform on that occasion, and that thereupon it then and there became the duty of the defendant previous to the arrival of the President and suite at Johnstown station aforesaid, on the 14th day of September, to have the platform made sufficiently strong to bear and uphold as many people as might congregate there on the occasion aforesaid, and to make the said David Gillis or any person who in pursuance of the premises aforesaid stood thereon, safe and secure, otherwise to have given due notice and warning to the said plaintiff that said platform was not safe and secure, but entirely unfit to bear and uphold a large multitude of people, especially such a multitude as was congregated upon it, on the day and year aforesaid, on the occasion aforesaid.
    “ Now, the question thus presented, it will readily be perceived, is, whether this proposition of the plaintiff is true; whether the railroad company was bound to have a platform there, sufficiently strong to bear the crowd which was upon it that day, and beneath which it broke down. The plaintiff here affirms that proposition, and rests his case upon it, while the defendant denies it, alleging, on the other hand, that all the defendant was legally bound to do, under the circumstances, was to have a platform sufficient for all its ordinary purposes, which, it is alleged, was a reasonable use of its own property. Now, is the plaintiff’s proposition correct ? Was the company bound to have a platform there, as is averred, sufficient to support the crowd, to have borne the ‘ large multitude of people’ that was upon it on that occasion ? If so, the plaintiff’s case is made out; for it is too plain for controversy, that the defendant had not such á platform. It was not sufficient to bear that weight, as is proven by the fact that it broke down under it. If the defendant, in view of its relation with the plaintiff and the others injured, was bound to have such a structure there on that day, then, we repeat, the plaintiff’s case is made out, and it would only remain to assess his damages.
    “ If, on the other hand, the defendant ivas not bound, for the benefit of these parties, to have a structure of that kind there, to meet that extraordinary occasion, but only, as is alleged, in the reasonable use of its own property, a platform sufficient for all its ordinary purposes, then the plaintiff’s action as plainly fails; and the case here is as plain as in relation to the other proposition. In this aspect of the case, there is no question of fact. The averments of the narr. and the testimony on both sides leave nothing in controversy or doubt; nothing to be submitted to a jury for decision.
    “ It will be remembered that this platform had been there for six years; that it had answered all ordinary purposes, and had, in some instances, resisted the pressure upon it, of what might be termed extraordinary occasions, or unusually large crowds. This is in clear proof from both sides. Take the instance mentioned by Judge Easly, a witness of the plaintiff, in the spring of 1861, when he states that, on the occasion of the soldiers leaving Johns-town, the whole platform was covered with soldiers and their friends, who were there to witness their departure in the cars; and that, also mentioned by the Hon. D. J. Morrell, another witness of the plaintiff, who states that there was a very large crowd upon it a short time before the disaster, on the occasion of the governor of the Commonwealth visiting Johnstown. It had thus answered the ordinary purposes of the company, and had stood the pressure of what might be considered extraordinary occasions before that time, and even up to very shortly before it. The structure had not been there so long, that according to any evidence here, it would be reasonable to suppose the timbers had become decayed, so as not to be sufficient for their purpose, through lapse of time. They had been there about six years; and, as shown by all the witnesses who have testified upon the subject, such timbers will usually be safe for eight or ten years.
    “ Mr. Morrell also stated that on an occasion of soldiers going away, he mentioned to some officer of the company, that there might be danger on extraordinary occasions, and that it would be better to strengthen it. It would seem that this was in the year 1862; and, in that year some time, there was an additional truss put into it. Whether it was after, or in pursuance of the suggestion, and for the purpose of making the structure as secure as possible, is matter of inference. It will be remembered that some examination of the platform had been made, and new planks put upon it, a short time before the accident; showing an effort, whether a skilful and successful effort or not, to have the structure in good repair.
    “If it was material to ascertain or fix the exact strength or condition of the structure, or what weight or pressure it was capable of bearing, that would be a question for you, to be determined from all the testimony as to the plan of it, how it was made, the character of the timber, &c., but that, as the case is presented by both partieseis not a material inquiry. It is clear, beyond doubt or controversy, on the one hand, that the platform was not sufficient to bear the crowd upon it on the 14th of September, and beneath which it gave way. That is the position of fact, upon which the plaintiff rests his case; and, if the defendant, as he avers, is legally answerable to him for not having such a platform, his case, it is clear and not disputed, is made out, and he is entitled to a verdict. It is just as clear and free from all doubt, on the other hand, that the platform was sufficient for all ordinary purposes. This is testified to by witnesses on both sides, and shown by all the concurrent facts in the case. Mr. Morrell, a witness of the plaintiff, commenced and closed his testimony with that declaration; and that is the purport of the testimony of a number of witnesses on the other side. The tests, too, to which it had been subjected, proved this as conclusively as its insufficiency was proven in the same way for the extraordinary occasion which broke it down, and there is nothing in the evidence which tends to cast a doubt upon the fact.
    “ Upon the issue here and under this state of the evidence, it is our duty, gentlemen, to treat the material facts of the case as established beyond dispute; and it brings the case to one question, which thus becomes purely a legal question to be decided by the court, whether, the facts in clear proof being that the structure was sufficient for the ordinary purposes of the company, that was or was not all that the defendant was accountable for to this plaintiff, or any one standing in the same relation; or whether, as maintained by the plaintiff, the defendant was bound, for his benefit, to have a structure sufficient to bear the crowd upon it on that occasion. That question, in the aspect in which it is presented, is, we repeat, a question of law. It imposes upon us, for the present, the duty of determining the case. * * * * Regarding this as a legal question for the decision of the court, we are constrained to'say to you, as the result of the best examination we have been able to give it, that the defendant was only bound, so far as the rights of this plaintiff are concerned, in the relation he sustained to the defendant, to have a platform, on the occasion in question, sufficient to answer all the ordinary purposes of the company, which must be regarded as a reasonable use of its own property and franchises, as it regards all to whom it owed no special duty; and that for anything, beyond that, or for any injury that resulted on an extraordinary occasion to the plaintiff or to any one sustaining the same relation to the defendant that the plaintiff did, the defendant was not and is not responsible.
    “ Any liability of the defendant must have some foundation in the failure to perform, or in the violation of some duty owed the plaintiff. Now, it will be remembered, that he was not a passenger upon a train, or there for the purpose of becoming one; and that the strongest obligations which, from considerations of policy, rest upon common carriers of passengers, to provide for their safety, did not rest upon the company as it regards these parties.
    “ It will be remembered, also, that he was there, where, unless he sustained that relation, he could claim no legal right to be. Although not a trespasser, it was because he was there by the permission of the defendant. As we have already said, he was not there on a public highway, in the prosecution or enjoyment of rights which, as such, he might legally claim. If he had been, the company would have been bound to an extent corresponding with the obligation resting upon them, in view of that relation.
    “ Nor, it will be remembered, did this disaster result from any act of the defendant; or of any of the defendant’s agents, or in the use of the defendant’s property, which affected the plaintiff in the use or enjoyment of his property, so as to give application to the maxim, or the legal rule expressed by it, that one must so use his own as not to interfere with the rights of others. He was there merely as a volunteer; and, regarding him as such, it is our view of the law, that the platform being sufficient for all ordinary purposes, it was his duty or business to see for himself that it was sufficient for the extraordinary occasion; in other words, that he or any one standing in his relation to the defendant, under circumstances which put the strength of the structure to an unusual or extraordinary test, would go and be upon it at his peril. That is our opinion of this legal question.
    “ We are of the opinion that the principles of Knight v. Abert apply strictly to this point in this present case. To have and maintain a platform, that answers the usual and ordinary purposes of the company, is a reasonable use or exercise of its property and franchises; and in the absence of some proof of malice or recklessness, could never be the occasion of injuries for which it would be responsible to any one, particularly to one to whom it owed no duty and who had no right upon its property. In the case of Withers v. The North Trent Railway, 3 IT. & N. 969, a very recent English case, it was held that the company was not bound, even as it regarded the claim of a passenger, to have foreseen and provided for the giving way of an embankment which had stood for five years, in consequence of an extraordinary freshet. Nor does this case put it upon the ground that the unusual freshet was the act of God, which always relieves common carriers from their obligation, under the law of bailment. And in Hinds v. The Pitts-burg, Port Wayne and Chicago Railroad, ruled by our Supreme Court, 3 P. P. Smith 512, which was also the case of a passenger, Woodward, C. J., indulges in remarks, recognising a railroad company as in the reasonable discharge of its duty when it fails to provide for ‘ extraordinary’ occasions, such as it was not reasonable to suppose it should anticipate.
    ********
    “ As it has been remarked here this morning, we were present, and witnessed this sad disaster; and, we trust in God, we may never witness another scene like it. We are free to say that, for the sufferers, we have the most profound sympathy. At the same time, the question is here, as a legal question, whether the defendant is responsible for it.
    “ There are casualties, gentlemen, occurring almost daily in the multifarious departments of human life, for which the law has been able to furnish no just rule that would fix responsibility, or liability for the consequences, upon anybody. They are, in most instances, the results of a want of care, thought or prudence, or the fault of the party suffering or of somebody; yet, nevertheless, the law has not undertaken to fix or adjust rules which render any one answerable in damages. There are such casualties, to be regarded as such; when the injury can only be regarded as the misfortune of the party suffering. It will depend on the final issue of this case, whether this is to be regarded as such; or whether the defendant here is legally responsible for the injury for which the plaintiff claims.
    
      “ At present, gentlemen, after reading and answering the points submitted by the counsel of the parties for the purpose of raising upon the record all the questions that could be raised in the case, we will feel it our duty to instruct you to return a verdict for the defendantwhich will relieve you of all responsibility. Ruling the turning question in the case as we do, there is no question of fact to be submitted to your decision.”
    The verdict was for the defendants.
    The plaintiff took out a writ of error, and assigned for error the answers of the court to the points of the respective parties and also the charge.
    
      A. Kopelin and It. 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; Cleveland and Cincinnati 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: Ohio & Miss. Railroad v. Gullett, 15 Indiana St. R. 487. Public policy requires that railroad companies should construct and keep their roads and appertenances 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; Erie City v. Schwingle, 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. Rutland and Burlington Railway, 27 Vt. Rep. 377; Marshall v. York, N. and B. Railroad, 11 C. B. 655; Gerhard v. Bates, 20 Eng. L. & Eq. 129; Broome on Com. Law 661, 679; Davis v. Lamoille County Plank Road Company, 27 Vt. 602; G. North. Railway v. Harrison, 14 Eng. L. & Eq. 189; Philadelphia and Reading Railway v. Derby, 14 How. 480; Cumberland Valley Railroad v. Hughes, 1 Jones 141; Carson 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. Railroad, 1 P. F. Smith 325; Sweeny v. Old Colony and N. Railroad, 10 Allen 368; Corby v. Hill, 4 C. B. N. S. 556. The platform was dedicated to public use: Banks v. S. Yorkshire Railway, 32 Law Times J. Q. B. 26. One undertaking an act by ■which the conduct of others may he properly governed, is hound to do it so that no one will suffer by his negligence: Sweeny v. Old Colony and N. Railway, 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; The Lackawanna and B. Railroad Co. v. Chenewith, 2 P. F. Smith 382; McGrew v. Stone, 3 Id. 436. Opening depots and platforms is primá facie a license to all to enter, and the entry is not a trespass: Pierce on Railways 251, &c.; Commonwealth 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 Railroad Co., 19 Conn. 566, 569; Park v. O’Brien, 23 Id. 347; Ohio & Miss. Railway v. Gullett, supra; Burnham v. City of Boston, 10 Allen 290; Elliott v. Pray, Id. 378; Sweeny v. Old Colony and Newport Railway 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 : Railroad Co. v. Skinner, 7 Harris 298; Railroad Co. v. Hummel, 8 Wright 377; Railroad Co. v. Norton, 12 Harris 465; Kelly v. Penna. Railroad, 7 Casey 372 ; Knight v. Abert, 6 Barr 472; Barker v. Midland Railw., 36 Eng. L. & Eq. 258; Pickford v. Grand Junction Railway, 8 M. & W. 372; Lucas v. Taunton & N. B. Railroad, 6 Gray 66; Brand v. Troy & S. Railroad, 8 Barb. 378; Lygo v. Newbold, 9 Exch. Rep. 302; Binks v. S. Yorkshire R. and R. Dun Co., 32 Law Jour. N. S. 26; Winterbottom v. Wright, 10 M. & W. 109; Comm’th. v. Power, 7 Metc. 602; Hall v. Power, 12 Id. 485; Heil v. Glanding, 6 Wright 493; Brooks v. Buffalo Railroad, 25 Barb. 600. The defendants are not within the maxim sic utere tuo, &c.: Sweeney v. Old Colony and N. Railroad, supra; Southcote v. Stanley, 1 Hurl. & Norm. 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. Kent Railroad, 3 H. & N. 971; Blyth v. Birmingham W. Works, 36 Eng. L. & Eq. 506; Pitts., Ft. W. 6 C. Railroad v. Hinds, 3 P. F. Smith 512. The court properly ruled the case as a question of law: 1 Redfield on Railways 546; Catawissa Railroad v. Armstrong, 2 P. F. Smith 282.
   The opinion of the court was delivered, July 2d 1868, by

Sharswood, J.

The platform of a railroad company at its station 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 there 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 madé 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 Rinks 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 .Earning 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 the fact that the whistle was not blown, nor signal made, was no evidence of negligence.” And, again: “There is as perfect a duty to guard against an accidental injury to a night intruder into one’s bed-chamber as there is to look out for trespassers upon a railroad where the public has no right to be.” Ho reference is made in the opinion to Lynch v. Nurdin, 1 Q. B. 29, a decision much controverted, but one which has stood its ground. But in that case the careless act of the defendant, in leaving a horse.and cart standing in a public street without anybody to watch it, amounted to a nuisance, and it is to be distinguished on that ground. Had it been left standing on an open, unenclosed lot, the ruling in all probability would have been different. Yet a doubt has been more than once expressed, whether when a child receives an injury from indulging in what is called “ the natural instinct of a child,” by getting up behind a gentleman’s carriage whilst it is in motion, or standing in charge of a coachman, though without a servant on the footboard, the principle of Lynch v. Nurdin would apply: Wilson v. Brett, 11 M. & W. 113; Lygo v. Newbold, 9 Exch. 302. It would matter not, so far as his master was concerned, whether the coachman allowed it or not.

The application of this principle to the determination of the case in hand is not difficult. The plaintiff may not have been technically a trespasser. The platform was open; there was a general license to pass over it. But he was where he had no legal right to be. His presence there was in no way connected with the purposes for which the platform was constructed. ’’ Had it been the hour for the arrival or departure of a train, and he had gone there to welcome a coming or speed a parting guest, it might very well be contended that he was there by the authority of defendants, as much as if he was actually a passenger, and it would then matter not how unusual might have been the crowd, the defendants would have been responsible. As to all such persons to whom they stood in such a relation as required care on their part, they were bound to have the structure strong enough to bear all who could stand on it. As to all others they were liable only for wanton or intentional injury. The plaintiff was on the spot merely to enjoy himself, to gratify his curiosity or to give vent to his patriotic feelings. The defendants had nothing to do with that. They were conveying the President of hhe United States and his party on a special excursion train. They must have stopping-places. They were certainly under no obligation to keep them secret. On the occasion in question it seems that they meant to do so in order to prevent detention and confusion. As we have seen, they cannot be made liable by the unauthorized act of one of their employees, through whom it leaked out what the hour was the train was expected to arrive at Johnstown, nor for that of another in backing up the train so as to give the people who had assembled an opportunity of seeing and hearing the President. I am bound to have the approach to my house sufficient for all visitors on business or otherwise; but if a crowd gathers upon it to witness a passing parade and it breaks down, though it may be shown not to have been sufficient even for its ordinary use, I am not liable to one of the crowd, — I owe no duty to him. If a traveller by foot, on the open track of a railroad, crosses a bridge, which ought to be, but is not in its ordinary use, strong enough to bear a locomotive and train of cars, and a rotten board breaks down under him, the company are not liable to him, for they owe him rio duty. However much to be lamented was the sad occurrence which occasioned this suit, and however much sympathy may be felt for those who were injured, and the families of those who lost their lives, we are of the opinion that the circumstances of the case were not such as to cast any pecuniary responsibility on the railroad company, and that the learned judge below was therefore right in directing the jury to find a verdict for the defendants.

Judgment affirmed. 
      
       The main question decided in this case has’very recently been considered and decided in the same way in Gautret v. Egerton, Law Rep. 2 C. P. 371, and Holmes v. N. E. Railway Company, Law Rep. 4 Ex. 254.
     