McGinnis v. Peoples Bros. , 249 Pa. 335 ( 1915 )

Opinion by

Mr. Justice Mestrezat,

The learned trial judge erred in refusing the defendants’ first point for charge, the subject of the second assignment of error. He was requested to charge that if the boy climbed upon the wagon without the consent of the defendants or their driver, he was a trespasser, regardless of his age. The plaintiff admits that the boy in climbing on the defendants’ wagon was a trespasser, which is unquestionably true, and the jury should have been so instructed.

We are also compelled to sustain the fourth and fifth assignments which allege error in the court declining to charge that if the boy was a trespasser there could be no recovery against the defendants unless the jury found from the evidence that they or their driver wantonly or intentionally inflicted the injury complained of. This is the established doctrine in this State, as settled by all our cases. In Gillespie v. McGowan, 100 Pa. 144, a suit to recover damages for the death of a child, we said (p. 150): “It is settled by abundant authority that to enable a trespasser to recover for an injury he must do more than show negligence. It must appear there was a wanton or intentional injury inflicted on him by the owner. The same rule has been recognized and announced in more than one of our very recent cases.

It is claimed on the part of the plaintiff that the driver saw the child on the truck, yelled to him and the other children to get off, and then started his horses without giving him sufficient time to a-light. He was thrown under the wheels of the wagon and severely injured. From the charge, it appears the learned judge thought the plaintiff’s testimony, if believed, showed that the boys, including the plaintiff, were on the wagon, were all ordered to get off, and that an. opportunity was not given the plaintiff to obey the order. The defendants contended the evidence failed to show that the driver saw the plaintiff before he started the wagon and that, therefore, there was no wanton or intentional injury inflicted on the boy and the court should have taken the case from the jury. For this reason the sixth and seventh assignments allege error in refusing to direct a verdict for the defendants and subsequently in not entering judgment for the defendants non obstante veredicto. It must be admitted the evidence offered to show that the driver was aware of the presence of the boy on the truck before he started is not as clear or satisfactory as it should be. The learned trial judge manifestly thought that it was sufficient to submit to the jury, and we are not prepared to say that he committed reversible error. It is contended by the plaintiff that when the driver yelled to the boys to get off, he included the plaintiff, and, therefore, the driver had knowledge of his presence on the wagon. The plaintiff was not called as a witness and hence we have no information from him as to whether the driver saw him on the wagon before he started the horses. As the case goes back for a retrial, this fact should be more fully developed, and if there is any doubt as to the sufficiency of the evidence for the purpose, the court may be asked by proper points to rule specifically on the question. We must not be considered as ruling the point on the testimony presented in this case, and will leave the question to be determined on such testimony as may be adduced on the next trial.

The second, fourth and fifth assignments are sustained and the judgment is reversed with a venire facias de novo.,