Ginocchi v. Pittsburgh & Lake Erie Railroad Co.

• Decision Date: 13 April 1925
• Docket Number: 10
• Citation: 129 A. 323,283 Pa. 378
• Parties: Ginocchi et ux. v. Pittsburgh & Lake Erie Railroad Co., Appellant
• Court: Pennsylvania Supreme Court

129 A. 323

283 Pa. 378

Ginocchi et ux. v. Pittsburgh & Lake Erie Railroad Co., Appellant

No. 10

Supreme Court of Pennsylvania

April 13, 1925

Argued March 23, 1925

Appeal, No. 10, March T., 1925, by defendant, from judgment of C.P. Lawrence Co., Sept. T., 1923, No. 91, on verdict for plaintiff, in case of Gennaro Ginocchi and Anna Ginocchi v Pittsburgh & Lake Erie Railroad Co. Affirmed.

Trespass for death of son. Before EMERY, P.J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiffs for $3,480. Defendant appealed.

Errors assigned were various instructions, quoting record.

The judgment is therefore affirmed.

J. N Martin, of Martin & Martin, for appellant.

John P. Lockhart, with him R. L. Hildebrand, for appellee.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE KEPHART:

The plaintiffs sued to recover for the death of their son, aged thirteen, and obtained a judgment in the court below. Reversal is asked for the reason defendant was not negligent, and the trial court erred in its instruction to the jury relative to the boy's earning capacity.

At eight o'clock in the morning, the boy was sent with the noon-day meal to his father, employed at the Carnegie Steel Company, New Castle. The street leading to the place where the father worked was crossed by a number of railroad tracks just before entering the plant; some were owned by defendant, the remainder by various other railroad companies. After delivering the lunch, the boy left the plant on his return journey home. There was a Pennsylvania train using the railroad crossing. He stopped on defendant's track immediately adjoining those of the Pennsylvania company, and waited until the train cleared the crossing. When it had passed he continued his walk over defendant's tracks, crossing those of the Pennsylvania, and, for some unknown reason, he turned to recross. Finding the Pennsylvania engine and train in the act of reoccupying the crossing, he waited until it again cleared, then passing from behind it the boy started toward defendant's tracks. The latter's shifting engine was then approaching, about eight feet away. The trainmen could easily have seen the boy, but the engineer and fireman were looking in an opposite direction from where the boy was walking. Without warning of any kind, the train moved towards the boy. Realizing his position, he attempted to escape by running ahead of the engine. He was not quick enough; the engine overtook him, knocked him down and passed over his body, fatally injuring him. This was a much-used crossing by pedestrians as well as by locomotives.

Under this statement of facts the jury was warranted in finding defendant negligent: Parker v. Washington Electric S. Ry. Co., 207 Pa. 438; Kehler v. Schwenk, 144 Pa. 348. Trainmen must not operate trains in this fashion over crossings in the heart of populous cities: Smeltz v. Pa. R.R. Co., 186 Pa. 364; Muscarro v. New York C. & H.R.R.R. Co., 192 Pa. 8; P. & R.R.R. Co. v. Killips, 88 Pa. 405. If they do, and injury results, they will be chargeable with negligence. The law will not presume negligence by a boy of this age in failing to observe ordinary precautions for safety, but leaves the jury to decide whether he had capacity to know and understand his position and acts.

Plaintiffs' statement set forth that, at the time of receiving the injuries, the boy was in sound, healthy condition, and the parents were entitled to the earnings of their son until he became of lawful age; that through the carelessness of defendant he was killed, and because of this plaintiffs were...