George Sutherland

“ 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. ”

“ It is unnecessary to discuss the question of negligence. The case is ruled by a statute of the state of New Jersey, which makes it unlawful '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 railroad.' Laws of New Jersey 1903, c. ”

“ 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 Case. The 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 (C. C. A.) 246 F. 800, 801) , there was open ground next to the siding used as a driveway to the station and the siding. ”