201 Pa. 558 | Pa. | 1902
Opinion by
William D. Todd, the minor, who sues by his father, Robert T. Todd, alleges that he was injured while attempting to cross over a train of the defendant company, which, when he got on it, was standing still and obstructing the public crossing, and started, without any notice or warning before he got on it, that it was about to start. He testified, in May, 1901, that he was between eleven and twelve years of age, and that, in July of the preceding year, he, with some other boys, was on his way, on Germantown avenue, in the city of Philadelphia, to a swimming pool at Laurel and Beach streets. Germantown avenue runs in a northwesterly direction from Front street, and intersects Second street obliquely. When the boys reached the intersection of these two streets, they found, according to young Todd’s testimony, the crossing at Second street obstructed by a train of the defendant; plaintiff and one of his companions sat down on the curb, and, after wait
The obstruction of a street crossing by a railroad company, in unnecessarily stopping its cars upon it, is unlawful. In plain terms, the act of March 20, 1845, declares the blocking up of a public crossing with locomotives or cars to be illegal, and prohibits it, under a penalty. The obstruction complained of in this case was prima facie evidence that the defendant was guilty of negligence, and, to establish its innocence, the burden was upon it to satisfy a jury that the obstruction had not continued for an unreasonable time, and could not have been avoided by the exercise of proper care and diligence. In other words, the burden was upon the company to prove that, under all the circumstances, there had not been an absence of care on its part. No such proof was offered; if any. had been presented, the sufficiency of it would have been for the jury*
No reason, it is to be regretted, was given by the learned judge below for taking the case from the jury. Under Rauch v. Lloyd & Hill, 31 Pa. 358, Kelly v. Pennsylvania Railroad co., 31 Pa. 372, and Layer v. Phila. etc., Railroad Company, 112 Pa. 414, no matter what has been held in other states, with us, the case was clearly for the jury’s determination. The two reasons urged here why the instruction to find for the defendant was proper are, first, “ the tail end of the train was at the crossing,” and the boy could readily have passed around it, and, second, “plaintiff could have continued along the sidewalk
It is true the boy was contradicted by his own witness, Joseph Froelich, as to how he was injured. According to the testimony of that witness, he had safely crossed over the ears, and, after he was down on the street, he jumped on the moving train, and, when about to alight, was struck in the head by the box car and thrown under the wheels. Testimony offered by the defendant was to the same effect; but plaintiff’s case, as made out by himself, though contradicted by one of his own witnesses and by all called by the defense, was for the jury: Ely v. Pittsburg, etc., Ry. Co., 158 Pa. 233; Bard v. Phila., etc., Railway Co., 199 Pa. 94.
Judgment reversed and venire facias de novo awarded.