Falchetti v. Pennsylvania R.R. Co.

• Decision Date: 11 April 1932
• Docket Number: 43
• Citation: 160 A. 859,307 Pa. 203
• Parties: Falchetti et ux. v. Pennsylvania R.R. Co., Appellant
• Court: Pennsylvania Supreme Court

160 A. 859

307 Pa. 203

Falchetti et ux. v. Pennsylvania R.R. Co., Appellant

No. 43

Supreme Court of Pennsylvania

April 11, 1932

Argued March 17, 1932

Appeal, No. 43, March T., 1932, by defendant, from judgment of C.P. Allegheny Co., July T., 1929, No. 3181, on verdict for plaintiffs, in case of Louis Falchetti et ux. v Pennsylvania R.R. Co. Reversed.

Trespass for death of plaintiffs' child. Before STADTFELD, J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiffs for $4,500, and judgment for $4,000. Defendant appealed.

Error assigned, inter alia, was refusal of judgment for defendant n.o.v., quoting record.

The judgment of the court below is reversed and judgment is here entered for defendant non obstante veredicto.

Samuel W. Pringle, of Dalzell, Dalzell, McFall & Pringle, for appellant. -- The six-year-old son of plaintiffs who lost his life while walking longitudinally along the alleged path in very close proximity to the westbound main track was in effect a trespasser, and since the evidence fails to disclose the violation of any duty owing from defendant to him as such, plaintiffs are not entitled to recover: P. & R.R.R v. Hummell, 44 Pa. 375; Moore v. R.R., 99 Pa. 301; Kaseman v. Boro., 197 Pa. 162; Tiers v. R.R., 292 Pa. 522; Bailey v. R.R., 220 Pa. 516; Leithold v. Ry., 47 Pa.Super. 137; Conn v. R.R., 288 Pa. 494; Gray v. R.R., 293 Pa. 28; Kolich v. Ry., 303 Pa. 463.

C. J. Tannehill with him Coleman Harrison, for appellees, cited: Tiers v. R.R., 292 Pa. 522, 528; Gray v. R.R., 293 Pa. 28, 32; Francis v. R.R., 247 Pa. 425; Kremposky v. Coal Co., 266 Pa. 568; Easterly v. R.R., 75 Pitts. L.J. 471; Piepka v. R.R., 242 Pa. 321.

Before FRAZER, C.J., SIMPSON, KEPHART, MAXEY, DREW and LINN, JJ.

OPINION

MR. JUSTICE SIMPSON:

Plaintiffs sued to recover damages for the death of their minor son, who was struck by the overhang of the cylinder head on one of defendant's passing engines, while he was walking longitudinally on its right-of-way, immediately adjacent to its tracks. The boy was six years old, too young to be contributorily negligent; but he was nevertheless a trespasser on the right-of-way, and for an injury resulting under such circumstances defendant will not ordinarily be liable: Conn v. P.R.R. Co., 288 Pa. 494; Kolich v. Monongahela Ry. Co., 303 Pa. 463. Of course, if those in charge of defendant's train had known that he was upon its right-of-way, they would have been required to exercise care to avoid injury to him (Piepke v. Phila. & Reading Ry. Co., 242 Pa. 321), exactly as they would have been if there had been no alleged permissive way. But they had the right to presume, and act upon the presumption, that there were no such trespassers (Conn v. P.R.R., supra; Gray v. P.R.R. Co., 293 Pa. 28), and defendant will not be held liable, if the presence of the trespasser did not become known until it was too late to avoid the accident: Piepke v. Phila. & Reading Ry. Co., supra; Conn v. P.R.R., supra. The duty to exercise care after such presence becomes known is, of course, greater in the case of infants, who are not supposed to be as fully aware of their danger, than it is in the case of adults. In the instant case, however, there is neither averment nor proof that the child's presence on the right-of-way was in fact known in time to avoid the accident, but only that the existence of the alleged permissive way, on which he was walking, imposed on defendant a duty to exercise great care towards those using it. It follows that the trial judge's refusal of defendant's point for binding instructions, and the court in banc's dismissal of its motion for judgment non obstante veredicto, were alike erroneous.

The explanation of the establishment and use of the alleged permissive way was that the character of the public road near to and paralleling the tracks, and the constant passage of automobiles thereon, made the road dirty and disagreeable in bad weather, and at all...