Golden ex rel. Golden v. Pennsylvania Railroad

187 Pa. 635 | Pa. | 1898

Opinion by

Mr. Chief J usticeSterrett,

On the afternoon of October 25, 1895, the plaintiff, then seven years of age, was returning southwardly from school to his home on the south side of Washington avenue between Tenth and Eleventh streets; and when he came to the intersection of Tenth street and said avenue he found the crossings blocked by defendant company’s cars standing on its Washington avenue tracks. He then went southeasterly across the pavement to a point where there was an opening of about eighty feet between the cars still standing on the track, and, proceeding to cross the street through said opening, to his home, the cars were suddenly backed without any warning, and he was struck, knocked down and sustained the injury of which he complains. Several persons who saw what occurred at the time, testified in detail to the facts and circumstances leading up to the injury sustained by plaintiff. One of them testified, inter alia, that when the train started to back “ the child was going across the street. I saw the train strike the child; it struck him some-wheres about the shoulder, knocked him down and the caí came back on him. . . . The boy was about a foot from the car going across when the train began to move.” He further testified that the cars had been on the crossing from twenty minutes to half an hour; that he heard no whistle or bell or signal of any kind, and that there was no one near either end of these trains to warn people. Other witnesses for the plaintiff testified substantially to the same state of facts. It is unnecessary to refer in detail to the testimony of either of them. The plaintiff’s evidence was quite sufficient to carry the case to the jury. It is true the defendant’s witnesses denied that the crossing was obstructed, denied that there was an opening between the cars where the child undertook to cross, and also denied that signals were not given, etc. If there ever was a case in which the conflict of testimony as to material facts necessitated submission to a jury this is one. It is impossible to consider the testimony on both sides without being convinced that the learned president of the court below would have committed a grave error if he had affirmed the defendant’s third point and instructed the jury as therein requested; that, “under all the evidence in the case the verdict should be for the defendant.” It therefore follows that the second specification of error must be overruled.

We are clearly of opinion that the learned judge was also right in refusing to affirm the defendant’s point recited in the first specification. ■ If the jury believed the testimony of the plaintiff’s witnesses, — and the fair inference from their verdict is that they did, — there was ample evidence “ that the company defendant blocked the crossing of Tenth street at Washington avenue in an unlawful manner.” The point was therefore rightly refused.

When considered in connection with the context, there is no error in what purports to be an extract from the charge, embodied in the third and last specification. In saying that, we do not mean to intimate any doubt as to the correctness of the extract as it stands alone in the specification. It is explained and fortified by cognate portions of the charge. Near the conclusion of it, the jury were instructed thus: “ It is for you to determine upon the evidence which you have heard whether the cars were in motion when the boy attempted to pass through. If they were, the accident was a misfortune for which the company is not responsible. It is only responsible for starting its cars without warning, in case you find, that the regular highway of Tenth street was blocked up at the time when pedestrians were, by reason of the blocking of the street, compelled to go around and go through the break. If you find that to he a fact, that Tenth street was blocked, and the little boy came up above Tenth and tried to cross through the break at the time tire cars were not in motion, and was run down by them, you may on those facts find a verdict against the company. If, however, you believe the little boy did not attempt to get through the break, but tried to crawl between the cars, or over the bumpers, or went in between them while they were moving, the company is not responsible.”

As remarked in the outset, tbe case was clearly for the jury. It was fairly and impartially submitted to them with instructions of which the defendant at least has no just reason to complain. There appears to be no error that would justify a reversal of the judgment.

Judgment affirmed.