129 A. 327 | Pa. | 1925
Argued April 21, 1925. Lewis Hojecki, a minor, was injured by falling beneath the car of a freight train operated by the Philadelphia Reading Railway Company, and actions to recover damages were instituted by his father, on behalf of himself as well as next friend for his son. Binding instructions were directed in favor of the defendant at the close of plaintiffs' case, and it is of this action that complaint *446 is now made on appeal. The refusal of certain offers of evidence is also assigned as error.
Penn Street in the Borough of Phœnixville ends at the right-of-way of the railroad, and no established crossing to the east is constructed, but it may be fairly assumed from the evidence submitted that persons did walk over the tracks permissively. Around the gas house, on the farther side, children were accustomed to gather and play, but the land covered by the right-of-way was not so used. On the day of the accident, a long string of freight cars was standing, with the rear over the point referred to, awaiting the coming of a passenger train, which would clear the track beyond so that the former could proceed. Hojecki, a boy of eight, with a companion near the same age, climbed upon the bumper of one of the standing cars, about the third from the rear, intending to take a ride. A brakeman, standing by the caboose at the end, saw the boys, and directed them to get off. One did so, and the child injured had started to descend, having his foot on the ladder, when the engineer gave a signal of his intention to start by two blasts of his whistle. The movement of the cars caused the boy to slip and fall beneath the wheel, resulting in the injury for which compensation was asked.
It was insisted below, and is urged here, that the brakeman, having observed the boys while the train was at a standstill, was under an obligation to see to their safe removal before permitting it to proceed, and testimony was offered to show that he had waved his red flag, supposedly with the purpose of notifying the engine-driver to go on. As stated by the trial judge, however, he was in no position to effectively give such a signal, and had he done so, it could not, and did not, control the movement of the train. From the relative positions of the engine and caboose, it would have been impossible for one at the former point to see a flag waved at the latter place, by reason of the location of the long train, extending, as it did, around a curve in the track. There *447 was nothing to indicate that the boys were forced off the car by violence, or while the train was in motion, or that any language was used calculated to frighten them from the positions which they had assumed.
There is no obligation on the part of the employees of the railroad to search the cars for trespassing infants before a train is set in motion, though, if observed, proper efforts must be made for their protection (Trevethan v. P. R. Ry. Co.,
It is further insisted that special precautions should have been taken under the circumstances here appearing, since the crossing was used permissively by those desiring to pass over the tracks from one side to the other, particularly in view of the fact that children were accustomed to make use of the land to the east by the gas *448
house for purposes of recreation. Many decisions hold that the instincts and impulses of infants must be considered in passing upon the liability of one causing injury, where it is known that they will likely be present where the accident occurs: Rachmel v. Clark,
Having in mind the principles set forth above, and examining the entire record in the light thereof, we are convinced that a proper conclusion was reached by the learned court below. The portions of the statement of claim offered to show the permissive use of the crossing, and the occupation of the land to the east at times by children, were inadmissible. The proposed testimony of Mr. McDade to the same effect was rejected as immaterial, and in this we see no error. The boy was not injured while attempting to pass over the tracks, but while descending from the car, where he had improperly gone to take a ride.
Without referring specifically to each, the assignments of error in both cases are overruled.
The judgments are affirmed. *449