Pollack v. Railroad Co.

• Decision Date: 20 February 1905
• Parties: Pollack <I>v.</I> Pennsylvania Railroad Company, Appellant (No. 1).
• Court: Pennsylvania Supreme Court

210 Pa. 631

Pollack

v. Pennsylvania Railroad Company, Appellant (No. 1).

Supreme Court of Pennsylvania.

January 13, 1905.

February 20, 1905.

Argued Jan. 13, 1905.

Appeal, No. 208, Jan. T., 1904, by defendant, from judgment of C. P. No. 5, Philadelphia Co., June T., 1903, No. 2505, on verdict for plaintiff in case of Stephen Pollack v. Pennsylvania Railroad Company.

Before MITCHELL, C. J., DEAN, FELL, BROWN, MESTREZAT, POTTER and ELKIN, JJ. Affirmed.

John Hampton Barnes, for appellant.

George Demming, for appellee.

OPINION BY MR. JUSTICE ELKIN, February 20, 1905:

Joseph Pollack, the plaintiff, a minor, nine years of age, was seriously injured by slipping or falling from a box car in a freight train belonging to defendant company, under the following circumstances:

The defendant has its tracks laid on Delaware avenue in the city of Philadelphia. On the evening of June 27, 1903, a number of box freight cars were standing upon defendant's tracks on said avenue. Joseph Pollack, with four other boys, on the afternoon of that day climbed on the top of these cars and was playing on and about them. Just a few moments before the injury to the plaintiff occurred the employees of the defendant company were engaged in coupling the cars, making them up into a freight train. An engine of the defendant moved back toward these cars for the purpose of being connected therewith and hauling the train a short distance away. All of the boys except Joseph saw the engine moving toward the cars and got off without being injured. Joseph did not see the engine until it was coupled to the cars and the train had commenced to move away. The boy at this time, being on top of one of the box cars, in order to protect himself was holding fast to the brake wheel or beam at the end of the car, waiting, as he testified, for the train to stop so that he could get off in safety. A brakeman who was standing on the ground at the side of the train while it was moving saw the boy and called aloud twice, saying, "Get out of there." At about the same time another brakeman on top of the moving cars, walking toward the place where the boy was clinging to the brake wheel, called aloud, "Get off there." According to the testimony of the plaintiff the brakeman on top of the car had a "switch club" in his hand, "and wanted to fire it at me." The boy then became frightened, and in attempting to climb down the steps of the ladder at the end of the car, slipped and fell on the track, was run over by the train and suffered severe injuries for which he seeks to recover damages in this action.

Although the boy was a trespasser, and might have been ejected from the train in a manner which would not endanger his life or injure his body, yet the...