139 A. 264 | Pa. | 1927
Argued May 24, 1927. The defendant's electric railway, extending northerly from Elizabethtown to Hershey in Lancaster County, crosses the track of the Cornwall Lebanon railroad by *555 an overhead bridge, the span of which is seventy-five feet long and is approached on either side by a trestle, that to the south being one hundred and fifty feet in length, and from it the track extends southerly on a fill for two hundred and forty feet. From the south end of the bridge to the south end of the fill, a distance of three hundred and ninety feet, the track is on a 4 1/2 per cent descending grade and from there south for at least one thousand feet is on a 2 1/2 per cent ascending grade. This track is crossed by a public road about 936 feet south of the bridge, at stop 13, but trolley cars only stop there on call. There is a straight track and clear view from this road to the bridge. The home of Mrs. Emma Reeder was located on the north side of this public road and west of the defendant's track. The minor plaintiff, Dorothy M. Cover, at the time in question four years old, and her brother Clarence, six, were living with Mrs. Reeder, their aunt. Their father was dead and their mother, who was employed in a hospital, paid Mrs. Reeder for their care. While away at work, Mrs. Reeder left the children in care of a married daughter, Mrs. Meads. Their home was in the open country and, aside from the near-by trolley track, apparently a safe place for children. At about 9 o'clock on the morning of March 25, 1922, Henry Cover, a cousin of the children, came to play with them. It was a bright morning and he asked leave to take the children down to Conewago Creek, about a quarter of a mile away, to reach which it was necessary to cross the track of the steam railroad at grade and through barbed wire fences, or by the street railway bridge. Mrs. Meads refused to let the children go and told them, as they had often been told before, to keep away from defendant's track. She went about her household duties and the three children soon went out to play. In perhaps an hour she requested her husband to go out and look for them, but as he did not do so she went and looked about the barn and along the trolley track and, not seeing them, returned to the house. *556 About the same time Mr. Meads saw the three children down in the meadow, as he thought coming home. Apparently they were then on the north side of the steam railroad track and, in place of crossing it at grade, they started to go over the trolley bridge and trestles, composed of girders, ties and rails. They passed over the north trestle and the bridge proper but as they were walking down the south trestle they were struck and thrown to the ground, a fall of over twenty feet, by one of defendant's northbound trolley cars. Dorothy was seriously and Clarence fatally injured. This suit, brought by the mother as next friend for Dorothy and in her own right, resulted in verdicts for plaintiffs. Judgment was entered on Dorothy's verdict, but as to the mother, judgment was entered n. o. v. for defendant; each side has appealed; they will be disposed of in one opinion.
It was a hazardous undertaking for any one to walk over this bridge, including the trestles, because there was nothing to walk on but the ties, and because of the impossibility of passing a car should one be encountered on the single track. The children were trespassers and the trial judge rightly charged the jury there could be no recovery except for a wilful or wanton injury: See McGinnis v. Peoples Brothers,
Some evidence was offered of an occasional use of the bridge by pedestrians, but there was no proof that defendant had knowledge of such use, actual or constructive, so that branch of the case failed. The trial judge, however, inadvertently submitted this evidence to the jury as an element to be considered in bearing upon the question of defendant's negligence. He asked the jury to find whether the people had such a persistent habit of using this bridge for a walk as to bring home notice *558
thereof to defendant. This, as the trial court suggests in passing upon the motion for new trial, was not warranted by the evidence. As we cannot say it did not prejudice the rights of the defendant the fifth assignment of error should be sustained and a new trial granted. In the absence of knowledge that people ever walked there and in view of the fact that defendant had notices, forbidding trespassing thereon, posted at the outer ends of the trestles, the motorman was not bound to be on the watch for trespassers (Goudreau v. Connecticut Co.,
Dorothy sustained a fractured skull, among other injuries, but there was no satisfactory evidence as to whether or not she was unconscious from the time of the accident until she reached the hospital. As that became a relevant question it was a competent matter for expert opinion, based on the apparent nature and extent of the injuries. In any event, the question of allowing opinion evidence is one addressed largely to the discretion of the trial court. See Gordon v. Phila. R. T. Co.,
Referring to the appeal of the mother, Mrs. Bertha Reeder, the trial judge submitted the question of contributory negligence of the children's caretaker to the jury, who found for the plaintiff. The rule as to when judgment n. o. v. can be entered in such case, as stated by the present Chief Justice, in Cramer v. Aluminum Co.,
In No. 33, May Term, 1927, appeal of the defendant from judgment in favor of Dorothy M. Cover, the judgment is reversed and a venire facias de novo awarded; and in No. 35, May Term, 1927, appeal by Bertha Reeder, plaintiff, from judgment entered for the defendant *561 n. o. v., the judgment is reversed and the trial court is directed to reinstate the rule for a new trial, that disposition may be made thereof in accordance with this opinion.