244 Pa. 355 | Pa. | 1914
Opinion by
In this action of trespass the plaintiffs sought to recover damages for the death of a minor son alleged to have resulted from the negligence of the defendant company. The accident occurred after dark on the evening of October 24, 1909, upon Twenty-second street near its intersection with Lippincott street. The double tracks of the defendant company are laid upon Twenty-second street which runs north and south. A street car going north, and one going south, on this street, passed each other in the vicinity of Lippincott street. At the time, the son of the plaintiffs was standing with another boy at the southeast corner of Twenty-second street and Lippincott. Just after the north bound car had passed, the boys started to cross to the west side of Twenty-second street. Plaintiffs’ son crossed'both rails of the north bound track, which was nearest to him, and as stated by the trial judge in his charge to the jury, “He passed behind the north bound car, and just as he put his foot on what they call the third rail, that is the first rail of the south bound track, he was caught and killed.” Under the circumstances, the only negligence of which the motorman in charge of the south bound car, could have been guilty, would have been, failure to stop his car, after he saw the boy upon the track ahead of him, in time to avoid hitting him. The point of the inquiry in this case, was therefore, how far was the car away from the boy, when he entered upon the track upon which it was running? We have examined the record very carefully for evidence bearing upon this point. Plaintiffs’ witness,, Dewsbury, testified that the boy came back of the north bound car, and stepped on the track in front of the south boünd car. The court put to the witness this question: “He was caught just as he got on what you call the third rail?” To which the witness answered, “Yes, sir.” John G. Knoepfle another witness for the plaintiffs, testified that “When the north bound car had passed, the boys had went on across, and by the
The first and second assignments of error are sustained. The judgment is reversed and is here entered for defendant.