247 Pa. 217 | Pa. | 1915
Opinion by
This was an action to recover damages for the death of a minor child; the verdict was for the plaintiffs and the defendant has appealed.
There was a conflict in the testimony on some of the material issues; hut, since the verdict was for the plaintiffs and the evidence relied upon by them was sufficient to that end, for purposes of review, we must take the following facts as established: That the accident happened about dusk in the evening of October 3d, 1912; that the child who was killed was 6% years old; that he resided with his parents on College street, in the Borough of Washington, Washington County, near the place of the accident, and had lived there since the previous February; that he and his parents were familiar with the location of the railroad and the sounds which come from locomotive bells and whistles; that at the location in question the main line of the defendant’s road was elevated over College street, but there was a side track on the surface which crossed this street and ran into the yard of a manufacturing plant; that a building used as a machine shop was erected on one side of the street, running along the railroad about 25 feet, with only about one foot, three inches between it and the railroad tracks; that on the day of the accident the plaintiffs’ boy accompanied by several other children came along College street walking toward the railroad on the side of the street on which the machine shop was erected; that one of these children was a girl about 13 years of age, another a girl over 10, and still another, k girl, whose age is not given in the record, but whose testimony shows her to have been of mature mind and indicates that she probably was older than the other children ; that when the children were on the pavement in
The question of the negligence of the defendant company was for the jury; but the appellant contends that, even though its negligence be admitted, yet, since one of the girls gave the boy warning of the approach of the train, it is clear the failure on its part to give such warning was not the proximate cause of the accident. In disposing of this contention, we cannot do better than to quote from the charge of the trial judge, where he stated, “If you find that the whistle was not blown or the bell rung, that would be an act of negligence...... but that would not warrant you in stopping there and saying ‘now the 'company is responsible,’ because there are other questions that you have to consider; for instance, the purpose of these signals is to give warning and if persons approaching a crossing receive warning, it does not make any difference whether the bell was rung or not......, and the railroad company says that because the plaintiffs’ witnesses have said that the children who were with this young boy told him at the time tjiat a train was coming,......it makes no difference whether the bell was rung or not. That would be true .......if this had been a grown person, but we leave it to you to say whether it is equally true in the case of this
The appellant admits that the child was too young to be charged with contributory negligence, but it seriously contends that the parents were guilty on that score; this issue was likewise submitted to the jury and found against the defendant, and under the circumstances we do not see how the court below could have ruled it as a
The assignments of error are all overruled and the judgment is affirmed.