248 Pa. 474 | Pa. | 1915
Opinion by
We see no merit in this appeal. The action was brought to recover damages for injuries to a seven year old child caused by its being struck by the overhang of defendant’s freight car while the child was on the defendant’s right of way which the jury was justified in finding had, with its permission, been used for many years as a street or passageway for pedestrians and vehicles. The defendant’s right of way included a strip of land about ten feet wide adjacent to the ground occupied by its tracks. It extended from Armat street to Chelten avenue in Germantown. It also appeared that children living along the way used it as a playground. It was the only means of access to the buildings along and fronting it. The injured child lived with its father
The learned court instructed the jury that before there could be a verdict for the plaintiff they must find that the strip of land in question was a driveway, that it had been used as such and for a playground for many years with the knowledge and with the assent of the railway company, that if they shunted or shifted the cars down the track without any warning that children playing near the track might be injured, and that the accident occurred by reason of the defendant not having exercised the care and attention required of it. The court after further instructing the jury that it was not the duty of the defendant’s employees to make an investigation to see whether any person was under or between the cars prior to moving them, said: “It was not incumbent upon the company or its employees to do that, but it is for you to decide whether or not it ought to have anticipated children playing upon the street, and being in such proximity to the cars as that they might have been injured if the cars were suddenly shifted, and it is for you to say whether, under the circumstances, the defendant company’s employees ought to have looked to see whether there was any danger or risk
It will, therefore, be seen that the court submitted to the jury to determine whether the strip of ground was used as a thoroughfare or street and a place for children to play with the knowledge and permission of defendant company, and whether defendant’s employees in charge of the cars, under the circumstances, should have anticipated the presence of persons upon the street when the freight cars were put in motion, and if so, whether they exercised proper care to protect such persons from injury which might result from moving the cars. There was ample evidence to show that the strip of ground where the accident occurred was used as a street or passageway by the public with the knowledge of the defendant and without objection. It was habitually so used by the public for many years without any objection on the part of the defendant, and it was for the jury to determine whether the defendant acquiesced in such use. The child, was, therefore, not a trespasser under the finding of the jury, and it was the duty of the defendant’s employees in charge of the freight train who are presumed to have notice of the public use made
The age of the child forbids any allegation of negligence against her, and the negligence of the father and of the defendant company was properly submitted to the jury.
Judgment affirmed.