McMullen v. Pennsylvania R. Co

• Decision Date: 03 February 1890
• Docket Number: 146
• Citation: McMullen v. Pennsylvania R. Co, 19 A. 27, 132 Pa. 107 (Pa. 1890)
• Parties: JOHN McMULLEN v. PENNSYLVANIA R. CO
• Court: Pennsylvania Supreme Court

19 A. 27

132 Pa. 107

JOHN McMULLEN v. PENNSYLVANIA R. CO

No. 146

Supreme Court of Pennsylvania

February 3, 1890

Argued January 18, 1889.

Re-argued January 13, 1890.

APPEAL BY DEFENDANT FROM THE COURT OF COMMON

No. 146 July Term 1888, Sup. Ct.; court below, No. 801 December Term 1884, C.P.No 1.

On December 31, 1884, John McMullen brought case against the Pennsylvania Railroad Company to recover damages for the death of his minor son, charged to the negligence of defendant company.Issue.

The case was first tried November 14, 1887, when at the close of the plaintiff's testimony, the court entered judgment of compulsory nonsuit.Afterwards, on motion of the plaintiff the judgment of nonsuit was vacated.At the second trial on February 13, 1888, the following facts were shown:

The defendant company has three tracks upon and along Trenton avenue, Philadelphia.On August 9, 1884, and for two or three days prior thereto, a train of loaded coal cars was standing on one of these tracks, between Dauphin and Ohio streets occupying nearly the whole length of the square.The cars were coupled together, and there was no break or opening in any part of the train, and the train did not cover any crossing.About noon on the day named, an engine pushing a number of box cars, was brought along the same track on which the coal cars were standing, and the train of box cars was joined to the coal train for the purpose of moving the latter.When the two had been coupled together, and just as they were about to move, Gertrude Horsfall, looking out of the window of her house on Trenton avenue, saw the plaintiff's son on the track beneath the coupling between two of the coal cars, lying on his back, his head between the rails and his feet hanging over one of them.The train starting, one car passed over the boy and cut off his foot then four car wheels passed over him, before the train was stopped, in consequence of an alarm given by the witness.The injuries thus inflicted on the boy caused his death about three hours later.When he was picked up, a tin pan partially filled with coal, was found beside him.Mrs Horsfall was the only person who witnessed the accident.Her testimony describing it, given on behalf of the plaintiff, is quoted in the opinion of the Supreme Court, infra.No witness could give any account of the movements of the deceased immediately prior to the time when he was seen by her, just as the train was starting.The last previous sight of him by any witness was about five minutes before the accident, when he started away from the house of his aunt, on a street parallel with and a square away from Trenton avenue, where he was temporarily residing.At the time of the accident, he was ten years and four months old.Mrs. Horsfall testified that she heard no bell rung or other warning given that the train was about to move, and that none of its crew were in sight.Testimony for the defendant tended to prove that warning was given.

At the conclusion of the testimony the court, BREGY, J., charged the jury as follows:

[I will in this case reverse the usual order of addressing a jury, so that you may thoroughly understand the nature of this suit. . . .

The father is not entitled to recover under any circumstances, unless this death was caused by the negligence of the railroad company.Unfortunate as it may have been; as much as we may regret the accident and regret the death; and as sorry as we may be for the parent, still the railroad company is not responsible unless the death was caused by their negligence.

What is negligence?It is a failure to perform a duty which the law imposes upon one, under the circumstances of the case.It is want of proper care according to the circumstances.Therefore I propose to leave the question to you, whether or not the railroad company exercised all the care that was proper under the circumstances.If they did, your verdict should be for the defendant.If you find that they did not exercise proper care, that they were negligent in the performance of their duty in the moving of these cars, then you come to another question, which is this: As these cars were upon a public street, people had a right to go over and across them upon matters of business, and they had a right to require that the railroad company should give proper notice of its movement of the train in order to notify them of the danger.If you find that this boy was there in the proper exercise of his right, and that the railroad company did not fulfil its duty according to the circumstances, then you should render a verdict for the plaintiff in such amount as I have indicated to you would be proper.

There is another view of the case, however, and that is, that the boy was there stealing coal under this car.Whether that is the real truth of the occurrence; whether that is what he was there for, of course we do not know.You are to judge of that by the evidence, by the people who testified, by the surroundings, and by what you know of life yourselves.Of course, if he was stealing coal under the train, and the railroad company intentionally ran over him, then the company would be responsible for damages; but I suppose it is hardly contended that they did this on purpose.

The law does not require a railroad company to go around and look under each car before they move it, to see whether there is a child under their train, under ordinary circumstances.I can perceive, perhaps, that it might be their duty to look under the car, if, before they moved a train, they saw a lot of children under it, and some ran out; to go and look and see, perhaps, if there were any more there; but in the case of a train standing, with no person about it, I charge you that the law does not require a railroad company to look under each car to see whether there is a child under it stealing coal.

If you believe that the railroad company did their duty to law-abiding citizens and persons exercising their legal rights, and that the accident happened notwithstanding that, then your verdict ought to be for the defendants.]

I am asked by the plaintiff to charge you as follows:

1.Where a railroad track is laid upon a public street in Philadelphia, a child who crosses said track from a point between two public streets, which also cross said track, is not a trespasser.

Answer: Affirmed.

2.Where a railroad track is laid upon a public street in Philadelphia, a child, who, in order to cross said track from a point between two public streets which cross said track, creeps under the freight cars of a standing train, is not a trespasser.

Answer: Affirmed.

3.Whether plaintiff's son was guilty of contributory negligence is a question entirely for the jury, under the evidence in the case.

Answer: Affirmed.

4.It was the duty of defendants to give some sufficient warning of their intention to move the train of cars which passed over plaintiff's son, and if they failed to do so, they are guilty of negligence.

Answer: Affirmed.

5.If the jury believe from the evidence that the train of cars which passed over plaintiff's son had been allowed to stand upon the track on said Trenton avenue for several hours, it was the duty of defendants to give sufficient warning of their intention to move said train, and if they failed to do so they are guilty of negligence.

Answer: Affirmed.

6.If the said train of cars had been allowed to stand upon said track for several hours, merely ringing a bell or blowing a whistle is not necessarily a sufficient warning of an intention to move said train.

Answer: I decline to say that, and leave it for you to decide whether it was or was not sufficient warning.

7.It is for the jury, under all the evidence, to say whether defendants gave sufficient warning of their intention to move said train.

Answer: Affirmed.

The defendant has asked me to charge you as follows:

5.The railroad company has a right to assume "that a child old enough to be trusted to run at large, has wit enough to avoid ordinary danger; and so, persons who may have business on the streets may reasonably conclude that such an one will not voluntarily thrust itself under the feet of his horse or under the wheels of his carriage," or under the wheels of the cars of a steam road, and still more strongly may they conclude that they are not to provide against possible damages that may result to the infant from its own wilful trespass.

Answer: Affirmed.

[The other points of the defendant are refused, to wit, the first, second, third, fourth, sixth, seventh, eighth, and ninth, which are as follows:

1.The only duty of defendant was to people using the highway in the usual and ordinary way.It ought not to presume that persons would attempt to go over or under cars standing at a point where there was no crossing, and where it had not invited a crossing, either by leaving a space or otherwise.

2.At crossings upon a railroad, before starting the cars the duty is to look ahead that no one may be injured by the movement of the cars; and at an opening between cars for passing, the duty is the same.The defendant can assume that no one will attempt to climb over or crawl under the cars.

3.The railroad company can be charged with negligence only upon the proof of some act of omission or commission, and on this question of the neglect of duty by the railroad company, the minority of the person alleged to be damaged is immaterial.As the only fact proven is that the child was under the car when first seen, lying upon its back, you cannot presume that it was passing through with a knowledge of the company, or that it was using the highway to pass over.On the evidence the plaintiff fails in proving negligence, and the verdict must be for...