Dissenting Opinion by
Mr. Justice Musmanno:On May 11, 1942, Owen Davies, a boy eleven years of age, was struck and killed by a railroad train of the defendant company near the village of Daleville in Lackawanna County. Viewing the evidence in the light most favorable to the plaintiffs in the ensuing litigation, as all courts are required to do when considering a nonsuit, one could conclude the following facts were established at the trial.
Martin’s Crossing, in the vicinity of which the accident occurred, passes over the right of way of the railroad company. The tracks at this point cut through land used by children as a playground, and in order to pass from one section of the playground to the other, it was necessary to cross the railroad tracks. Children had used this playground daily for three years prior to the accident. It was the custom of railroad trains approaching Martin’s Crossing to sound a whistle warning and to diminish speed. The train which struck the minor decedent, however, observed neither of these precautions. The stretch of track at this point was straight, thus assuring the engineer an unobstructed view for more than a quarter of a mile. No fence or barrier separated the track from the playground.
*187Assuming the above facts to be true, and we are compelled to accept them as true since they were testified to at the trial, the jury should have passed on the question as to whether the railroad company was or was not guilty of negligence under all the circumstances.
A non-suit, as I view the law, should not be entered unless every possible hypothesis of negligence arising from the circumstances of the litigated event is conclusively negatived by the evidence in the case. The mere happening of an accident, of course, does not establish negligence, but neither does a theory of non-negligence forcibly extracted from the testimony deprive the injured party from having his case heard by the constitutional trier of facts, namely, the jury.
There is no doubt that a railroad company has the right to exclusive use of its tracks, but it may not use those tracks in such a manner as to visit tragedy upon others when the exercise of reasonable care could avoid' that tragedy. The law of humanity, while not accepted with statutory authority, still controls the logic of human responsibility. And this responsibility on thé part of railroads has been recognized in numerous cases decided by this Court. In O’Leary v. Pittsburgh & Lake Erie R. R. Co., 248 Pa. 4, 93 A. 771, a four year old boy, who was playing on the railroad company’s tracks, was killed by a passing train. It was established at the trial that the tracks in question had for years been used as a playground by the children. In setting aside a non-suit ordered by the trial Court, the Supreme Court said: (p. 10) “The permissive use of its tracks placed the defendant company in a different attitude toward the children playing upon its ground and imposed upon it different duties for their protection in its use. In moving its trains on the tracks, the defendant, therefore, did so with the knowledge that the children of the neighborhood had been for many years using the ground as a playground, and was re*188quired to anticipate that they would continue to do so. This imposed upon the company the duty of reasonable care in the operation of its trains over the tracks so as to avoid injury to those who might be making a permissive use of them. If the jury found that the defendant failed to exercise such care in the operation of its trains on the day of the accident which resulted in the death of John O’Leary it would be negligence which would impose liability.”
It is true that in the case at bar the tracks themselves were not the situs of the children’s playing, but it is also true that land on both sides of the tracks was used for the playing of baseball and other sports, and the children used the railroad track in order to get from one side of the sports field to the other. This unquestioned situation charged the defendant with the responsibility of reasonable care to avoid injuring the children using the tracks since it could not help knowing, and the law. under the evidence charged it with' knowing, the use to Avhich they had put and were putting the railroad right of way.
Although the boy’s body in the instant case was found a short distance above, Martin’s Crossing, this does not conclusively establish, for the purpose of a non-suit, that he had not adopted the crossing as a passageway when he moved from one side of the track to the other.
In the case of Hogan et al. v. Etna Concrete Block Co., 325 Pa. 49, 188 A. 763, the Supreme Court held, where the child trespasser was injured on the land of the defendant company which manufactured concrete blocks thereon: (p. 51) “Toleration of trespass for sufficient time gives rise to privilege which adds to the duties of the occupier in the maintenance and use of his premises: Kay v. Pennsylvania R. R. Co., 65 Pa. 269, 273. The ‘playground rule’ in Pennsylvania is a specialized application of this principle: See Fitzpatrick *189v. Penfield, 267 Pa. 564, 572. Here there was ample testimony that for years children were wont to play daily on defendant’s grounds without its objective disapproval. Therefore defendant may not disregard the likelihood of their presence in the conduct of its operations (O’Leary v. Pittsburgh and Lake Erie R. R. Co., 248 Pa. 4; Counizzarri v. Philadelphia and Reading Ry. Co., 248 Pa. 474) or in the maintenance of hazardous machines or artificial conditions.”
The fact that the decedent child was a trespasser does not bar recovery in the present law suit. This Court said in Rachmel v. Clark, 205 Pa. 314, 320, 54 A. 1027: “It is strenuously urged that the child was a trespasser and that, therefore, in the use of their premises the defendants owed him no duty of protection against the injuries he sustained. Several cases decided by this court are cited in support of the proposition and as sustaining the contention of the defendants that by reason of the trespass there can be no recovery here. But those cases were ruled on a different state of facts and do not control the present case. . . . Here, as we have seen, the peculiar location of the ground where the accident occurred imposed the duty of reasonable care in the use of it on the defendants, and it is averred as the cause of action that the plaintiff’s injuries were due to a negligent performance of that duty. This was a question for the jury.”
“Where the owner of property invites or permits its use by the public, as a common, or for a playground, or a picnic ground, it is certainly the duty of the owner to use reasonable - precautions to protect the public from the operation of dangerous machinery located thereon.” Millum v. Lehigh, Etc., Coal Co., 225 Pa. 214, 217, 73 A. 1106.
While the railroad company in this case did not permit the railroad to be utilized as a playground, it did permit its highly dangerous operation to be used as *190a passageway between two sections of a playground and it therefore owed its, as it were, permissive trespassers a duty of reasonable care to avoid injuring them. It could well be that the jury would decide that the defendant company was not negligent and that it had met its obligations of reasonable care, but its obligations in this respect were not so clearly and conclusively discharged as to deprive the plaintiff of the right to have a jury pass upon that question.
The evidence in the case here could warrant a jury in concluding that the dead boy was struck at or near the permissive crossing and this, together with the fact that the company maintained no gates or watchman at that point and the train itself gave no warning, could well result in a verdict for the plaintiff.
In the case of Steele v. L. S. & M. S. Rwy. Co., 238 Pa. 295, 299, 86 A. 201, where the plaintiff was injured at a railroad crossing the Supreme Court said: “No objection was made to such use of the crossings and it is clear that they were used by the defendant’s knowledge and consent. ... It was, therefore, the duty of the defendant to exercise its rights in view of the circumstances so as not to mislead persons to their injury without a proper warning of its intention to recall its permission: Kay v. Pennsylvania Railroad Company, 65 Pa. 269.”
I would set aside the non-suit and order a new trial.