Conner v. Pittsburg Ry. Co.

• Decision Date: 07 January 1907
• Docket Number: 133,134
• Parties: Conner v. Pittsburg Railways Company, Appellant
• Court: Pennsylvania Supreme Court

65 A. 1106

216 Pa. 609

Conner v. Pittsburg Railways Company, Appellant

Nos. 133, 134

Supreme Court of Pennsylvania

January 7, 1907

Argued October 30, 1906

Appeals, Nos. 133 and 134, Oct. T., 1906, by defendant, from judgment of C.P. No. 3, Allegheny Co., Aug. T., 1904, No 541, on verdict for plaintiff in case of Joseph Conner Minor, by next friend, Burton Conner, and Burton Conner in his own right v. Pittsburg Railways Company. Affirmed.

Trespass to recover damages for injuries to a boy seven years old. Before McCLUNG, J.

The circumstances of the accident are stated in the opinion of the Supreme Court.

Verdict and judgment for Burton Conner for $1,500, and for Joseph Conner for $4,500. Defendant appealed.

Error assigned was in refusing binding instructions for defendant.

The assignments of error are overruled and the judgment is affirmed.

William A. Challener, with him Clarence Burleigh and James C. Gray, for appellant, cited: Hoffman v. Phila. Rapid Transit Co., 214 Pa. 87.

Rody P. Marshall, with him T. L. Kerin and Thomas M. Marshall, for appellee, cited: Thompson v. Traction Co., 193 Pa. 555; Evers v. Traction Co., 176 Pa. 376; Schnur v. Traction Co., 153 Pa. 29.

Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.

OPINION

MR. JUSTICE MESTREZAT:

The first and only assignment which requires consideration alleges that the court erred in not affirming the defendant's point for instruction that there was no sufficient evidence of negligence on the part of the defendant company to justify a verdict for the plaintiffs. This point was properly refused by the court, and the case was submitted to the jury.

The duty of a motorman requires him to exercise care and vigilance in operating his car. He should give close attention to his duties so that he may protect those who without negligence are occupying the track in front of him, as well as those who are passengers in the car who may be endangered by a collision with persons or objects on the track. As this court said in Schnur v. Citizens' Traction Company, 153 Pa. 29, and it has substantially been reiterated time and again, a motorman "should always be on the alert, to avoid danger, and his attention never should be diverted from his duties. He should keep his eye constantly on the track before him. If he is permitted to gaze at houses or other objects while his car is in motion, and an accident occurs by reason of such conduct, the company employing him must expect to be held responsible."

A public highway, known as the River road, leads from Homestead along the Monongahela river in Allegheny county to the South Side in the city of Pittsburg. At the place of the accident, the road runs along a hillside parallel with and about twenty-five or thirty feet above the tracks of the Pittsburg, McKeesport and Youghiogheny railroad which skirts the river at that point. Here, there are several houses on the upper side of the River road and no buildings below it. The defendant company operates a single track electric railway on the road, and at the place of the accident the track is on the extreme lower side of the road. The company runs only two regular cars on this line, and as they travel in opposite directions, they pass at a switch about 300 yards down the river from the point on the track where the accident occurred. A well-worn path, four feet in width, leads from this point diagonally across and down the hillside about thirty-five feet to the railroad tracks. The path was made by the boys of the community "going continuously to and fro from the river getting wood."

On the morning of July 18, 1902, which was a bright, clear morning, Joseph Conner, the minor plaintiff, a child of less than seven years, and Carlton Duffy and William Martin, two other lads of about the same age, went from their homes on the upper side of the River road near the place of the accident to the river bank near Walton's coal tipple on the railroad, about a quarter of a mile distant, in search of firewood. When they started to return to their homes, they walked along the railroad to the path and then followed it. Just before they reached the street railway track which is on the extreme lower side of the river road overlooking a steep bank, Conner was in the lead, Duffy was about ten or twelve feet behind him and Martin was directly in the rear of Duffy. Conner proceeded to cross the track, and as he was stepping over the second rail he was struck by defendant's car and very seriously injured. This was a summer car with the footboards turned up against its sides, running down the river in the direction of the south side, and was not carrying passengers, but "was piled full of benches and seats."

The plaintiffs allege that the motorman was negligent in operating the car, that he failed and neglected to keep a proper lookout for persons lawfully upon the highway and that he failed to give any warning of the approach of the car. The plaintiffs claim that if the motorman had been giving attention to his duties, he could have seen the children on the path as they approached the railway track, and could have seen Conner on the track for a sufficient distance to enable him to stop the car before it struck the boy. The plaintiffs also claim that the motorman could and should have seen Conner as he was walking on the path and nearing the car track and if he had sounded the gong then, the boy would have heard it and not attempted to cross the track. The failure to perform these duties is the negligence alleged by the plaintiffs against the motorman of the defendant company.

The boys all testified that as they came up the hill on the path they saw a car on the defendant's track traveling towards the south side, but that they did not see or hear the second car, which was immediately behind it and which was the cause of the accident, until after it struck Conner. Duffy testified that the approach of the street car could not be heard because of the noise made by the engines on the two railroads which parallel the River road at this point, and that a train was passing on one...