191 Pa. 420 | Pa. | 1899
Opinion by
This action of trespass was brought by the plaintiff to recover damages for the loss he sustained by the untimely death of his two sons—five and seven years of age, respectively—who were killed in September, 1897, by a collision at the “ Frush Valley Crossing,” a minor station on East Penn Branch of defendant’s railroad. At the time of the accident, the children were in a covered wagon accompanied by Hiester, who, as plaintiff’s employee, and with his team, was then engaged in delivering flour and feed to customers of his employer’s mill, etc. He had just delivered flour to one customer about ninéty yards from the railroad crossing and was about to deliver feed to another south of the crossing; and, while driving across the railroad tracks, the wagon was struck by one of defendant’s company stock trains, and Hiester and both children were instantly
The defendant’s four points for charge (in three of which binding instructions against the plaintiff are requested) were rightly refused, and the case was submitted by the learned trial judge in a clear, accurate and fully adequate charge to which no just exception can be taken; and a verdict in plaintiff’s favor was rendered by the jury subject to the question of law arising upon the following undisputed facts:
“ The evidence in this case showing that Hiester, the person with whom the children killed were riding, was in plaintiff’s employ and living with him; that the children’s mother was absent when Hiester took them with him; that while they were at their parent’s home, they were in charge of the maid servant, another man and Hiester; that on previous occasions Hiester had taken one or both of the children with him on his trips to deliver flour; that plaintiff knew he had done so and had not forbidden him to do so; that, in this particular instance, plaintiff did not know the children had gone with Hiester; that, in approaching the railway crossing at which the collision happened, said Hiester neither dismounted nor stopped, looked or listened; that the approach of the train was audible when the train was more than half a mile away from the crossing; that, at a distance of a few feet from the track, there was an unobstructed view of the same in the direction of the approaching train, of over 1,000 feet; that said Hiester was familiar with the crossing; and, it being undisputed that there was a caution-board on the road approaching the crossing sixty-eight feet from the same,—the question is reserved whether, under these circumstances, there can be a recovery by the plaintiff?”
After duly considering the question of law thus reserved, and subject to which the verdict in plaintiff’s favor was rendered, and also the questions arising under the rule for a new trial, the learned trial judge, in an opinion filed and sent up with the record, discharged the rules for a new trial and for judgment non obstante veredicto; and afterwards judgment was entered on
As already remarked, in three of defendant’s points (first, third and fourth), binding instructions in its favor were requested. In the second point, for reasons therein stated, the court was requested to “ confine the investigation of the jury to the simple question, whether sufficient notice of the approach of the train was given to enable a traveler on the highway to hear it coming, in time to avoid danger if such traveler had performed his duty to stop, look and listen.” For reasons given at length in the opinion referred to the second specification cannot be sustained. Nothing can be profitably added to those reasons. It would have been manifest error to have affirmed the points recited in the first and fourth specifications of error. There is nothing in either of them that requires discussion. As to the point recited in the third specification, wherein for reasons therein stated the court was requested to charge that the contributory negligence of Hiester, the driver, must be imputed to the plaintiff, and hence the latter cannot recover, we are clearly of opinion that the learned trial judge rightly refused to affirm it. Under the instructions contained in the learned trial judge’s charge, a verdict in plaintiff’s favor depended upon a finding, not only that the defendant company was guilty of negligence, but also that Hiester, the person with whom the plaintiff’s children were riding, was not in charge of them with his consent, express or implied. By necessary implication, both of these facts must have been found by the jury.
The correctness of the learned trial judge’s decision on the question of law reserved is so completely vindicated in his opinion that little, if anything, can be added to what he has so well said therein. Further comment, on either of the questions presented by the assignments of error, is wholly unnecessary.
The judgment is affirmed on the opinion of the court below discharging the rules for a new trial and for judgment in defendant’s favor, non obstante veredicto.
