Zimmerman v. Adams Express Co.
| Decision Date | 21 April 1913 |
| Docket Number | 358 |
| Citation | 240 Pa. 316,87 A. 283 |
| Parties | Zimmerman, Appellant, v. Adams Express Company |
| Court | Pennsylvania Supreme Court |
Argued January 21, 1913
Appeal, No. 358, Jan. T., 1912, by plaintiff, from judgment of C.P. No. 1, Philadelphia County, Jan. T., 1909, No. 671 granting nonsuit in case of Alice M. Zimmerman v. Adams Express Company. Affirmed.
Trespass to recover damages for death of plaintiff's husband. Before KINSEY, J.
The opinion of the Supreme Court states the facts.
The court entered a nonsuit which it subsequently refused to take off.
Error assigned was in refusing to take off nonsuit.
The judgment is affirmed.
Victor Frey, with him Augustus T. Ashton and Robert J. Earley, for appellant. -- The shooting was within the scope or the duty of the defendant's officer: Higbee v. Penna. R.R Co., 209 Pa. 452; Deck v. B. & O.R.R. Co., 100 Md. 168; Sharp v. Erie R.R. Co., 184 N.Y. 100.
Whether the shooting was negligently or intentionally done and whether it was necessary were questions which ought to have been submitted to the jury: State v. Roane, 2 Devereux (N.C.) 58; Com. v. Long, 17 Pa.Super. 641; Com. v. Shortall, 206 Pa. 165; Conraddy v. People, 5 Park Cr. (N.Y.) 234; Southern Ry. v. James, 118 Ga. 340.
John Lewis Evans, with him Thomas DeWitt Cuyler, for appellee. -- It is a well recognized principle that an officer may kill to prevent the escape of a felon: Com. v. Long, 17 Pa.Super. 641.
Even assuming that McCaughey should not have shot at Zimmerman, the evidence shows that he acted with proper caution and without negligence and Zimmerman's death is attributable solely to an accident.
Before FELL, C.J., BROWN, MESTREZAT, POTTER and MOSCHZISKER, JJ.
This is an action to recover damages for the death of the plaintiff's husband who was shot and killed by an officer in the service of the defendant company. At the conclusion of the plaintiff's testimony, the court below granted a compulsory nonsuit which it subsequently refused to take off. The plaintiff has taken this appeal.
It appears from the evidence that Frederick Zimmerman, the deceased, had been employed as a brakeman by the Pennsylvania Railroad Company in its Philadelphia division for about twelve years prior to his death. During the last eight months of his life he was engaged as a yard brakeman in the yard between West Philadelphia and Broad Street station. On the morning of May 14, 1909, he was shot and killed in the yard at Broad Street station by one Thomas McCaughey who was a special officer of the defendant, the Adams Express Company. He left to survive him a widow who brings this action for herself and two minor children.
The statement avers that while Zimmerman was lawfully engaged in and about the duties of his employment as a brakeman at the Broad Street station he was negligently and without reasonable cause or necessity shot by one of the servants or employees of the defendant company who was engaged in acting as a watchman over certain of the cars and goods which were then being used by the company and standing upon the premises of the Pennsylvania Railroad Company, the employer of the decedent. Thomas McCaughey, who did the shooting, was called by the plaintiff and was the only witness who testified as to what occurred on the occasion. From his testimony it appears that he saw Zimmerman enter an express car in the station on May 6th and May 12th, 1909, and on the latter date open a box in the car. Zimmerman again entered the car on the 13th. After each visit to the car by Zimmerman, McCaughey reported it to his superior officer. On the morning of the shooting May 14th, he and another officer were on guard and concealed in an express car standing on a track in Broad Street station, and between 4.30 and 4.45 o'clock Zimmerman again came into the car and was recognized by McCaughey as the man who had entered it on the previous occasions. Zimmerman broke open a crate and left the car. He soon returned, opened the side door, threw in a bucket and climbed in himself. He began to take eggs from the broken crate and put them into the bucket. McCaughey went toward him, holding a revolver in his right hand, and said: "You are under arrest." Zimmerman knocked McCaughey against the side of the car, then jumped from the car and started to run. The officer told him to halt, followed him and fired a shot in the air. Zimmerman continued to run and the officer again called to him two or three times to halt, and fired the second shot, down alongside of the car to the right. The two men were running in a space between two trains which was not more than two and one-half or three feet wide. The officer was about a car length or perhaps not more than twenty or twenty-five feet behind Zimmerman when the second shot was fired. Zimmerman fell and when the officer came up with him he discovered that the bullet had struck him and he was dead. The officer testified that he pointed his revolver under the body of the car and shot down towards the tracks, that he did not aim at Zimmerman, and that the bullet could not have hit him if it had not ricocheted off something. The bottom of the car under which he fired was about the height of the hip or a...
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