165 Pa. 118 | Pa. | 1895
Opinion by
About a half a mile from Lancaster station two cars were detached from the seashore express in order to allow the Philadelphia coach of the Columbia train to be connected with it ahead of them. . From the point of severance to the station there was a descending grade, and the railway tracks crossed three streets diagonally. When the detached cars were between Lemon and Walnut streets the brake was “ thrown off to get a little more momentum and headway,” and at the crossing of the latter they ran over and killed the plaintiff’s child. There were no gates at this crossing, but there was an old man there whose duty it was to watch two crossings and see that persons walking or driving on Prince street or Walnut street did not get in the way of the trains. The evidence in regard to the speed of the cars at the point where the accident oc-. curred was conflicting, some of the witnesses estimating it at ten, and others at four miles an hour. The crossings watched as above-stated were in a populous district of the city and there was a large amount of travel over them. No signal announced the approach of the cars to the crossing unless the waving of the watchman’s flag can be regarded as such. In the presence of the undisputed facts and the conflicting testimony to which we have referred, the defendant company requests us to say there was no negligence on its part in connection with the occurrence under investigation. This we cannot do. In view of the great age and consequent infirmity of the watchman, there is room for doubt respecting his fitness for the duty with which he was charged. But waiving this and assuming that he was competent for the work assigned to him, did the company make adequate provision for and have due regard to the safety of persons walking or driving upon the streets in the vicinity of these crossings ? As we have already seen, the crossings were in a populous district, and there was necessarily considerable travel over them on foot and in vehicles. Can a solitary watchman stationed on a corner bounded by the railway tracks and the intersected streets properly warn persons traveling upon these streets of the approach of a train ? To do so he must wave his flag where all persons approaching the crossings can see it, and he must be careful to note that the little box or house on his corner does not obstruct the view
The latter, however, contends that it has a defence to the action in the negligence of the plaintiff in permitting the child to go upon.the.streets alone in the manner described in the testimony. But this contention also presented, in our opinion, a question for the jury, to whom it was referred in appropriate instructions. It is for them and not for the learned court below, or for us, to say whether the implied permission given by the mother to the child to go to a near neighbor’s on the same street to help his playmate sell “ shooting crackers ” from a stand erected at his own home constituted negligence which satisfied the company’s contention on this point: Long et ux. v. Phila. & Reading Railroad Company, 75 Pa. 257, and Dunseath v. Traction Co., 161 Pa. 124.
We discover nothing in the rulings upon offers of evidence which calls for a reversal of the judgment. That the company very soon after the accident erected gates at the crossing where it occurred was a fact for the consideration of the jury: Penna. R. R. Co. v. Henderson, 51 Pa. 315; West Chester & Phila. R. R. Co. v. McElwee, 67 Pa. 311; and McKee v. Bidwell, 74 Pa. 218. The evidence was particularly pertinent in this case because the jury had been upon the ground, and had seen the gates there. To rebut an inference that the gates were there at the time of the accident it was proper to inform them when they were erected.
Ample opportunity was afforded the company to show the speed of the cars near to and at the crossing. John Keneagy was five hundred feet west of Lemon street, and did not see the cars after they crossed it. He was not very well qualified to speak of their speed after “ the brakes were thrown off ” and they were nearing the point where the accident occurred.
We are not convinced that the court erred in overruling the objections to and admitting the ordinance in relation to the speed of railway trains within the city limits, or in the instruc
Judgment affirmed.
