Dunn v. Philadelphia & R. R. Co.
| Decision Date | 07 March 1917 |
| Docket Number | 53-1915 |
| Citation | 65 Pa.Super. 406 |
| Parties | Dunn v. Philadelphia & Reading Railway Co., Appellant (No. 1) |
| Court | Pennsylvania Superior Court |
Argued October 9, 1916
Appeal by defendant, from judgment of C.P. No. 2, Philadelphia Co.-1914, No. 382, on verdict for plaintiff in case of James P. Dunn, by his father and next friend James Dunn, and James Dunn v. Philadelphia & Reading Railway Company.
Trespass to recover damages for personal injuries. Before Barratt, P J.
The facts are stated in the opinion of the Superior Court.
Verdict and judgment for James P. Dunn for $ 100 and for James Dunn for $ 235. Defendant appealed.
Error assigned was in refusing defendant's motion for judgment n. o. v.
Affirmed.
Wm Clarke Mason, for appellant.
Hugh Roberts, for appellee.
Before Orlady, P. J., Porter, Henderson, Head, Kephart, Trexler and Williams, JJ.
Plaintiff, a boy about fifteen years of age, claiming that he was shot in the heel by a special officer of the defendant company, brought this action to recover damages for the injuries resulting therefrom.
The plaintiff testified that he was crossing the defendant's tracks on his way from his home to a place of amusement; that he was in the habit of using this crossing daily; that it was an usual place of crossing; that some one called out to him to " watch" or something, he could not tell what; that he turned to see who it was when two men came from behind a freight car, fired some eight or nine shots from a revolver, hit him, and caused the injuries of which he complains. Plaintiff then called Sizer, the officer, who testified that the plaintiff, in company with two men had broken the seal of one car -- were breaking the seal of another car, when they were frightened by something and started to run. Then, in order to attract the attention of another officer, he fired his revolver at the ground in the direction of the boy.
The defendant offered no testimony and asked for binding instructions which were refused. The jury found a verdict for the plaintiff. The defendant moved for judgment n. o. v. which was refused.
The plaintiff was flatly contradicted by his witness, but that raised a question of fact to be determined by the jury: Susko v. Harleigh-Brookwood Coal Co., 244 Pa. 339, 90 A. 716; Collins v. Philadelphia & Reading Ry. Co., 63 Pa.Super. 371. The trial judge charged that if the jury believed the plaintiff, they should find a verdict in his favor but if they believed the officer, they should find for the defendant. The verdict is, therefore conclusive of the plaintiff's version of the facts.
Was the shooting of the plaintiff by the...
To continue reading
Request your trial