34 A.2d 526 | Pa. | 1943
This is the familiar case of a boy stealing a ride on a freight train and claiming that while he was clinging to one of the cars a trainman shouted and threw a lump of coal at him, causing him to become frightened and fall off. The jury found a verdict in favor of defendant, but the court in banc granted a new trial on the ground that the trial judge had erred in his charge to the jury. Defendant appeals.
The trial judge instructed the jury that since the boy was a trespasser there could be no recovery unless they found that defendant was guilty of a wilful or wanton infliction of injury. He added, however, that the age of the boy, 13 1/2 years, was an important factor, that if he had been 14 or over the court would have been compelled to take the case from the jury, that they would have to decide whether the boy was of sufficient understanding and maturity of judgment to have known that his act in climbing on the train was negligent and to have appreciated the danger, and that, if they so found, he was guilty of contributory negligence and could not recover from the railroad company no matter what the conduct of its employes may have been.
The court in banc, in an opinion written by the trial judge himself, concluded it was error to have charged that the boy's contributory negligence would bar his recovery *206 even if defendant's employes were guilty of wilful or reckless disregard for his safety.
Not only must the order be affirmed, but if the court below had not granted a new trial this court would have been obliged to do so in view of the decision in Kasanovich v. George etal., Trustees,
The order of the court below granting a new trial is affirmed.
