Davis v. Pennsylvania Railroad , 1907 Pa. Super. LEXIS 144 ( 1907 )

Opinion by

Morrison, J.,

This is an action or trespass originally brought by William Davis against the defendant, based on the killing of the plaintiff’s son, aged between thirteen and fourteen years, at a public crossing of the defendant’s five tracked railroad at Cresson, Pennsylvania.

During the trial the record was amended hy adding the name of Cora J. Davis as a plaintiff. This action is maintainable only under the provisions of the Acts of April 15, 1851, P. L. 669, and April 26, 1855, P. L. 309. It is solely by vir? tue of the provisions of these statutes that damages are recoverable for the death of William Davis, Jr. The deceased was a minor son of William Davis and Cora J. Davis and, as was said by Mr. Justice . Mestrezat, in the recent case of Waltz v. Penna. R. R. Co., 216 Pa. 165: “It is, therefore, apparent that in bringing the suit the act of 1855 was entirely disregarded, notwithstanding the plain terms qf the statute and the numerous decisions of this court pointing out the proper practice. The action should have been brought jointly in the names of both parents and the statement should have given the names of the parties who were entitled to the damages recovered. Neither of these requirements of the statute was complied with, and the trial court was clearly wrong in holding that ‘ the failure to join the husband and wife, the parents of the decedent, in the action,’ was not error. The ruling of the learned judge disclosed a misapprehension of the plain terms of the statute.”

In the present case the learned counsel for the defendant presented a point that inasmuch as the mother, who is living, is not a party to this action, the plaintiff cannot recover. This was refused because of an amendment, during the trial, adding the name of the mother, Cora J. Davis, as a plaintiff. The declaration was not amended and the provisions of the act of 1855 were palpably disregarded. In view of what was said in the case of Waltz v. Penna. R. R. Co., 216 Pa. 165, the trial court would have been warranted in affirming that point, unless the parties to the action and the declaration were so amended as to comply with the act of 1855. But we have no assignment of error raising this question and what has been said is merely for the purpose of directing the attention of the profession to the statutory requirements in this class of cases. It is remarkable that so many of these suits are brought without an attempt to make the pleadings comply with the statutory provisions, and the decisions of the Supreme Court.

We have'two questions raised by the assignments of error: (1) The negligence of the defendant, and (2) the contributory negligence of the decedent. It is not contended that the parents of the boy were guilty of contributory negligence.

The contention of the plaintiffs is that the defendant was negligent because the crossing was extraordinarily dangerous, the train running at a high rate of speed, and there was no watchman stationed or gates maintained at the crossing, or other means provided to warn the public of approaching trains; that no bell was rung or whistle blown or other signal given of the approach of the train which killed the boy, in time to be any protection to him. It is also contended that this crossing is in a populous place and is so much used that it is strong evidence of negligence not to provide a watchman or safety gates.

The other position of plaintiff is that the boy, being under fourteen years of age, the question of his capacity and mental development, so as to render him guilty of contributory negligence, was for the jury.

First, as to the negligence of the defendant: A careful examination of the evidence convinces us that the learned court did not err in referring this question to the jury. The evidence was in conflict and it raised material questions of fact upon which the negligence or non-negligence of the defendant depended. We think the charge of the learned court upon this question is clear and adequate and the jury having found the defendant guilty of negligence, we are unable to find anything in the record calling for a reversal on that ground.

As to the failure of the company to maintain a watchman or established gates at a public grade crossing, see Lehigh Valley R. R. Co. v. Brandtmaier, 113 Pa. 610; Pennsylvania R. R. Co.’s Case, 213 Pa. 373. The learned trial judge was of the opinion, and so instructed the jury, that if the boy had been above fourteen years of age, his contributory negligence would have been a bar to the plaintiff’s recovery, but inasmuch as the boy was under fourteen, he felt compelled to submit to the jury the question of his mental capacity and ability to be guilty of such contributory negligence as would have prevented his recovery, if he had been injured and survived.

In Bracken v. Penna. R. R. Co., 32 Pa. Superior Ct. 22, we held : “ the boy was only twelve years old and the court could not say, as a matter of law, that he had sufficient mental development and capacity to comprehend the danger so that he would be guilty of contributory negligence, although an adult might have been in the same circumstances. . . . And the question of his capacity and understanding to be sensible of danger, and to have the power to avoid it, was one of fact to be disposed of by the jury, under proper instructions from the court: Nagle v. Allegheny Valley R. R. Co., 88 Pa. 35; Kelly v. Traction Co., 204 Pa. 623; Crissey v. Hestonville, etc., Pass. Ry. Co., 75 Pa. 83.” To which authorities the following may be added: West Phila. Pass. Ry. Co. v. Gallagher, 108 Pa. 524; Byron v. Central R. R. Co., 215 Pa. 82, where it was said by Mr. Justice Elkxk (p. 86) : “ The boy being under fourteen years of age, the presumption of incapacity to appreciate the danger arose and was not so conclusively overcome by the testimony offered at the trial as to justify a court in holding as a question of law that he was guilty of contributory negligence. We see no reason, either in fact or law, to distinguish the case at bar from the long line of cases in wdiich this rule has been recognized and followed in our state. This was also a question of fact for the jury. The learned trial judge in a careful, adequate and well considered charge, submitted the case to the jury where it belonged.”

So we say as to the case at bar. Upon all the questions raised by the assignments of error, the learned trial judge properly and carefully submitted them to the jury and the evidence is sufficient to support the verdict.

The assignments of error are all dismissed and the judgment is affirmed.