Drenberg v. Mahoning and Shenango Railway & Light Company
| Decision Date | 13 October 1913 |
| Docket Number | 66-1913 |
| Citation | 55 Pa.Super. 218 |
| Parties | Drenberg v. Mahoning and Shenango Railway & Light Company, Appellant |
| Court | Pennsylvania Superior Court |
Argued May 12, 1913
Appeal by defendant, from judgment of C.P. Lawrence Co.-1911, No 50, on verdict for plaintiff in case of Aaron Drenberg, a minor, by his next friend and father, Gustave A. Drenberg and Gustave A. Drenberg, in his own right, v. The Mahoning and Shenango Railway & Light Company.
Trespass to recover damages for personal injuries. Before W. E Porter, J.
The circumstances of the accident are stated in the opinion of the Superior Court.
At the trial the jury returned a verdict for the father, Gustave A Drenberg, for $ 500, and for the son, Aaron Drenberg, $ 1,500. Subsequently the court entered judgment against the father non obstante veredicto, but overruled defendant's motion for judgment n. o. v. as against the child.
It appeared from the opinion of the court below that judgment was entered against the father because he had been guilty of contributory negligence in permitting the child to wander unattended upon the public streets.
Error assigned among others was refusal to enter judgment for defendant n. o. v. as to the child.
Affirmed.
C. H. Akens, with him Fred J. Heim and Akens, Wilkinson, Lockhart & Chambers, for appellant, cited: Flanagan v. Ry. Co., 163 Pa. 102; Eastburn v. U.S. Exp. Co., 225 Pa. 33; McKee v. Traction Co., 211 Pa. 47; Phila. & Reading R. R. Co. v. Hummell, 44 Pa. 375; Moss v. Traction Co., 180 Pa. 389; Cominskey v. Ry. Co., 4 Pa.Super. 631; Gilmartin v. Transit Co., 186 Pa. 193; Penman v. Ry. Co., 201 Pa. 247; Barto v. Beaver Valley Trac. Co., 216 Pa. 328.
W. D. Wallace, with him Samuel Clark, for appellee, cited: Yingst v. Ry. Co., 167 Pa. 438; Davison v. Traction Co., 10 Pa.Super. 442; Dunseath v. Traction Co., 161 Pa. 124; Citizens' Pass. Ry. Co. v. Foxley, 107 Pa. 537.
Before Rice, P. J., Henderson, Morrison, Orlady, Head and Porter, JJ.
The refusal of the court to direct a verdict for the defendant was clearly right. The plaintiff, at the time of the injury was only five years old and could not be charged with contributory negligence. The testimony on his behalf, although contradicted, was sufficient to warrant a finding of these facts. The plaintiff was playing on the sidewalk with two or three other children; he left the cartway and started across the street. From the curb to the nearest rail of the street car track was a distance of eight feet, he had crossed this space, entered upon the street car track and was about one foot from the second rail of the track when he was struck by a car of the defendant company. When the plaintiff left the sidewalk and started across the cartway of the street, toward the track, the car which struck him was over 200 feet distant, and when the child was within one foot of the track and about to enter upon it the car which was then rapidly approaching was still between 113 and 132 feet distant from the point of the accident. The child entered upon the track and, the car continuing to move rapidly, he was violently thrown upon the fender of the car and severely injured. The witness Pitts, on behalf of the plaintiff, testified that he had been a fireman on steam railroads and had experience in estimating the speed of moving objects; that he lived upon the street along which these cars operated and had observed their rate of speed. This witness said that he had particularly noticed the speed at which the car in question moved, that he noticed it from the time it left Mahoning avenue until it got down nearly to Swansea avenue (which covered the point of the accident) and that the car was running " faster than any other car that day or any other day that I ever noticed." He said, " I think at least it was running twenty miles an hour." The motorman operating the car testified that it was moving at the usual rate of speed and that the boy was only about fifteen feet in front of the car when he started to cross the track. The following facts were upon all hands admitted to be true. The street was entirely unobstructed and the motorman could have seen the boy from the moment he started to leave the sidewalk and cross the street; and the car ran over 140 feet after striking the boy, although the motorman had applied the air brake and used sand upon the track. If the testimony on behalf of the plaintiff was true the motorman could have seen this young child approaching the track when the car was still over 200 feet distant from the point of danger, yet the car not only ran that distance but passed over 140 feet beyond, after striking the boy, before it was stopped. The jury would have, therefore, been warranted in finding that the motorman either was not keeping a proper lookout ahead, or that seeing the danger he neglected to...
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