North Pennsylvania Railroad Co. v. Kirk

• Decision Date: 07 May 1879
• Citation: 90 Pa. 15
• Parties: North Pennsylvania Railroad Co. <I>versus</I> Kirk.
• Court: Pennsylvania Supreme Court

Page 15

90 Pa. 15

North Pennsylvania Railroad Co. versus Kirk.

Supreme Court of Pennsylvania.

March 24, 1879.

May 7, 1879.

March 24th 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, WOODWARD, TRUNKEY and STERRETT, JJ.

Error to the Court of Common Pleas of Montgomery county: Of January Term 1878, No. 104.

G. R. Fox and A. D. Swartz, for plaintiffs in error.—A parent cannot recover for the death of a son who was of age, unless it is established that their family relation continued to exist and that the parents received pecuniary advantage for his services: Pennsylvania Railroad Co. v. Zebe, 9 Casey 318; Caldwell v. Brown, 3 P. F. Smith 453; Pennsylvania Railroad Co. v. Bantom, 4 Id. 495; Railroad Co. v. Rowan, 16 Id. 393; Birmingham v. Dorer, 3 Brew. 69; Railroad Co. v. Adams, 5 P. F. Smith 499.

The negligence of the deceased contributed to the accident, and the court should have decided this question as a matter of law on the undisputed facts: Railroad Co. v. Armstrong, 2 P. F. Smith 282; Waters v. Wing, 9 Id. 211; Gerety v. Railroad Co., 31 Id. 274; Railroad Co. v. Feller, 3 Norris 226.

The motion for the nonsuit should have been granted, and it was error to rule that if the motion was insisted upon and refused, the defendants should be precluded from giving any evidence in defence: Smyth v. Craig, 3 W. & S. 14.

The deceased was engaged about the premises of the railroad company, and was an employee, and not entitled to recover: Act April 4th 1868, Pamph. L. 58; Kirby v. Railroad Co., 26 P. F. Smith 506; Mulherrin v. Railroad Co., 31 Id. 376.

H. K. Weand and B. E. Chain, for defendants in error.—The evidence of the existence of the family relation between the deceased and his parents was properly submitted to the jury, as was, also the reasonable expectation they had of pecuniary advantage therefrom: Railroad Co. v. Adams, supra; Railroad Co. v. Keller, 17 P. F. Smith 300: Central Railroad Co. v. McHugo, 35 Leg. Int. 62; Central Railroad Co. v. Barron, 5 Wallace 90.

The court's ruling in regard to the nonsuit was proper: Bevan v. Insurance Co., 9 W. & S. 187; Baker v. Lewis, 9 Casey 301; Howard Express Co. v. Wile, 14 P. F. Smith 201.

The deceased could not have been guilty of contributory negligence in entering a private building, connected with his own business, the doors of which were closed and barred, and into which cars could enter only by his own permission, and by the opening of the doors.

The first section of the act of 1868 does not apply to this case. The deceased was in no sense engaged, at the time of this injury, in or about the road or premises of the defendant company.

Mr. Justice WOODWARD delivered the opinion of the court, May 7th 1879.

This action was brought by Elias Kirk and his wife, the plaintiffs below, to recover damages for the injury they sustained by the death of their son, caused, as they alleged, by the negligence of the servants of the North Pennsylvania Railroad Company. At the trial the court were asked to charge the jury that the evidence did not show such a relation between the deceased and the plaintiffs as to entitle them to recover. It had been shown that the son was twenty-eight years of age when the accident happened. He had been away from home at intervals after he attained his majority, and had been in business on his own account. He had returned, however, to his father's house, and for some months had been rendering services of various kinds in his father's business, for which no compensation was paid him. Elias Kirk testified that when Morris returned from Maryland, he said he would stay and help the witness, and do anything he should be required to do. Mrs. Kirk said the services of Morris "were of great value," and that she "considered his advice of more value than that of any others." In clear and forcible terms that were characteristic of the whole charge, the jury were instructed positively that unless they found that the parental and filial relation was subsisting, and that there was reasonable ground to believe that it would continue to subsist, between the plaintiffs and their deceased son, they could find only nominal damages. There has been no departure from the rule laid down in the Pennsylvania Railroad Co. v. Adams, 5 P. F. Smith 499. The words "parents" and "children" in the Act of the 26th of April 1855, are used to indicate the family relation in point of fact, as the foundation of the right of action, without regard to age. And "if there be a reasonable expectation of pecuniary advantage from a person bearing the family relation, the destruction of such expectation by negligence occasioning the death of the party from whom it arose will sustain the action." The charge was in every way unobjectionable, and the question was one which it was the province of the jury to determine.

Was there evidence of negligence on the part of the defendants? Elias Kirk had a coal and lumber yard on the line of the railroad. A siding ran from the railroad track to a warehouse on Kirk's land. It was about two hundred and fifty yards in length. The company had built that part of the siding extending from the track to the line of their right of way. The rest of it had been built by Kirk. It was the usage of the company to deliver cars consigned to Kirk upon the siding, and at stated intervals to deposit upon it cars forming part of, and detached from, their own trains. The key of the switch was in the possession of John Quinn, who was in the company's employment at the time of this occurrence. During the afternoon of the 12th of March 1874, a flat lumber car was standing on the siding, about one hundred yards distant from the railroad track, and about one hundred and fifty yards from the warehouse. It had no effective brake, and the mooted question whether it had been sufficiently blocked was left to and found affirmatively by the jury. From the track to the point where the car stood, the grade of the siding ascended; from that point it descended over and along a series of coal-bins, and from the bins was ascending again towards and until it reached the warehouse. The car with a load of lumber consigned to Mr. Kirk, had been transported from Williamsport and placed on the siding five days before the accident. About four o'clock three flat and fifteen coal cars were detached from a freight train of the defendants on its way to Philadelphia. The switch was changed, and the cars ran by their own gravity upon the siding at the rate of three or four miles an hour. The flat car standing on the track was struck by the foremost of the approaching cars so as to start it, and force it on the down grade over the coal-bins, and on the up grade to the door of the warehouse, which was shut and barred, and which was broken open. Morris Kirk, who was sitting in his father's office when the sound of the approaching train was heard, hurried towards the warehouse and entered it, and was found afterwards fastened between a leaf of the door which the entering car had broken and a partition within the building, standing upright, dead. When the cars entered on the siding, the brakeman was not on the car nearest to that struck, but on one further back. He was called as a witness, and testified: ...