274 Pa. 335 | Pa. | 1922
Opinion by
This suit is by a widow for the death of her husband. The plant of the E. & G. Brooke Iron Company is located at Birdsboro, in Berks county, where the defendant railway company has a spur track on a trestle, on which it places cars with stone for the iron company. There are ratchets in the bottoms of the cars; these when opened permit the stone to drop into a pit beneath. A plank walk extends along two feet from the track. The employees of the iron company use a bar, called a wrench, some four feet long with a hole in one end which fits over a lug and when turned operates the ratchet1 causing the bottom to open. On December 1, 1917, defendant’s employees backed a train of cars of stone onto the trestle where they stopped and plaintiff’s husband, Domenico Gentile, employed by the iron company for that purpose, put a bar on the lug of one of the cars and in turning it caught the bar on a plank of the walk on which he was standing. At that moment defendant’s employees suddenly and without notice or warning moved the car some eighteen inches which caused the bar to break the plank and the deceased dropped into the pit, where he was instantly killed by the stone falling upon him.
Defendant offered no evidence; that for plaintiff was to the effect that the car had been stopped about two minutes at what was supposed to be, and the evidence tended to show was, the place to unload it, although one witness said it was properly placed after the eighteen-inch movement. The jury found for the plaintiff and, from judgment entered thereon, defendant brought this appeal.
It was the duty of defendant’s employees to use reasonable care to avoid injuring those engaged in unloading the cars (Nadazny v. Phila. & R. Ry. Co., 266 Pa. 305; see also Boggess v. Railroad Co., 234 Pa. 379) and
The deceased had a wife and five minor children in Italy, while he was and had been for some years living here, where he had steady employment. There is no evidence that he was estranged from his family and the fact' that he had made a visit home tends to negative such conclusion. What amount, if any, he had sent home does not appear, nor was such proof necessary, while sometimes offered as bearing on the question of earning capacity. A husband and father is presumed to perform the legal duty of supporting his wife and minor children; in any event, they are entitled to what the law would have compelled him to furnish them, whether he had previously done SO' or not. The deceased was forty-two years old, of steady habits and earned over a thousand dollars a year, and the trial judge properly instructed the jury that if they gave plaintiff a verdict it should equal so much of his earnings as they might find would have gone for the support of his family: Glasco v. Green, 273 Pa. 353.
As defendant is not hurt by the above mentioned subrogation provision in the Workmen’s Compensation Act,
The assignments of error are overruled and the judgment' is affirmed.