DocketNumber： Appeal, No. 4
Citation Numbers： 31 Pa. Super. 286, 1906 Pa. Super. LEXIS 207
Judges： Beaver, Head, Henderson, Morrison, Oblad, Orlady, Porter, Rice
Filed Date： 6/30/1906
Status： Precedential
Modified Date： 10/19/2024
Opinion by
■ The plaintiff’s son, aged about fifteen years, was killed at Cresson station on the defendant’s railroad on November 20, 1902, about five o’clock in the evening.
It is undisputed that the Union News Company, under • an arrangement with the defendant, had a booth or stand, for the sale of papers, periodicals, etc., on the platform of Cresson station, and received its supplies at that point by baggage car service, the goods being delivered at the car door to the employees of the Union News Company, and by them taken to the booth. John F. Parrish was the local agent of the Union News Company, and, as a personal enterprise, operated a small business in the name of the Cresson News Company, by delivering papers, magazines, etc., in Cresson, at points away from the station.
Henry Waltz was employed by Parrish for $2.50 a week to deliver papers received at the booth around the town, and to perform such other work as he was directed.
On November 20, Parrish was obliged to go away from Cresson for the night, and requested his father to take care of the evening business at the booth, lock it up, and open it for business the next morning.
The morning daily papers arrived at six and eight thirty o’clock by east and west trains. The news stand was generally kept open until about eight o’clock p. M. On this evening, Parrish, the father, who was there representing his son, testified as follows: “ Q. Did you see Henry Waltz, around there ? A. Yes, sir. Q. Where was he ? A. Standing at the outside window; I was inside. Q. What was Henry Waltz doing there? A. He was there for the purpose of helping that evening. Q. What were you doing there ? A. I was tending to the news stand for the evening. Q. What was Henry doing ? A. Well, he intended — his idea was to bring the papers from the train, as the train pulled in there, he was to bring the papers to the stand to me. That is what he was there for, to bring the papers up to the stand. Q. You were in charge of the news stand that evening? A. Yes, sir. Q. Did you invite Henry Waltz down there that evening? A. Yes, sir; I asked him to help me out that evening. Q. You asked him to come down? A. Yes, sir. Q. What were John Parrish and Mr. Waltz talking
The boy was standing on the station platform near to the news booth, with baggage trucks in his immediate vicinity when, as the appellant in his history of the case states, “ The accident occurred by an engine running east on Track No. 1, while the passenger train was standing on Track No. 2, going in the same direction, striking a baggage truck, which was thrown against the deceased.”
This engine had become disabled while hauling a train of cars from South Fork eastward and was obliged to leave the train at Portage, and from there the engineer reported its defective condition to the superintendent of the division. Orders were issued to the engineer to proceed to Altoona with the engine and tender alone, and while he was approaching Cresson station, owing to the escaping steam which filled the cab, he was unable to see along the line of the track and distinguish the passenger train standing at Cresson station. When quite near to the station he endeavored to bring his engine to a standstill, but found that the throttle would not work, and before he could apply the brakes successfully, the engine had passed through the station on the track between the one on which the passenger train was then standing and the station platform, striking the truck, and causing the death of the boy. This occupancy of the track by the engine was in direct violation of Rule No. 114, as follows: —“ Trains approaching stations where a passenger train is receiving or discharging passengers must be stopped before reaching the passenger train.”
The only explanation of the violation of this rule was, that by reason of the defective freight engine, it could not be controlled. On the trial a prominent contention was that the boy was a trespasser on the track of the company, and unnecessarily exposed himself to a manifest danger by being there. This question was largely one of fact, and was fairly submitted to the jury, in the general charge as follows: —“ If he was not there for a lawful purpose, if he was a trespasser and was not
There was abundant evidence to justify the jury in finding that as an employee of the Union News Company, he was acting under orders of the representative of that company in doing its necessary work, and at the very place and time where the railroad company provided that it was to be done, by delivering the papers at the car door, and that he was not a trespasser, but was there under his right as an employee of the Union News Company.
This action was brought in the name of the father. The defendant’s first point being, “Inasmuch as Martha Waltz, the mother of the deceased, is living, and is not a party to this action, the plaintiff cannot recover,” which was refused by the court. The defendant’s fifth point was as follows : —“ The defendant requests the court to instruct the jury that if they find for the plaintiff, to state in their written verdict whether the damages so found are for full compensation for both parents of the deceased.” This was answered as follows : — “We instruct you, if you find for the plaintiff to find full compensation and damages, so far as it affects both parents, and you must say in your verdict that you so find. That is, you will find full compensation in damages, whether due the father, or due the mother, or due both the father and the mother.” The verdict returned was as follows: — “Sept. 9, 1904. We, the jurors impaneled in the .above entitled case, find for the parents, the sum of $1,446.56. Total damages for the death of their son.”
The plaintiff filed a formal motion to amend by adding the name of Mary Waltz, the mother of the deceased, as one of the parties entitled to recover. On April 4, 1905, the'amendment was allowed, and judgment was then entered on the verdict in favor of the plaintiff.
Whatever of irregularity there was in the pleadings, it was relieved by this amendment. In Huntingdon & Broad Top Mountain Railroad Company v. Decker, 84 Pa. 419, the proper practice to be followed, under the act of 1855, is fully considered, so that there should be no controversy in the profession as to who are the proper parties, and how their demand
The addition of the name of Mary Waltz did not change the form of the action, and while her name should have been included in the statement as a person entitled to participate in the damages, its omission did not in any way harm the defendant in the light of the verdict returned by the jury.
The negligence of the company in allowing the dismantled engine to proceed on its way to Altoona, when it could not be controlled by the engineer, was a proper matter for the consideration of the jury in determining whether that act was negligent or not. It would be straining the judgment of common-sense jurors to hold under the testimony of the engineer who had it in charge that it was not negligent. This act of negligence was in the carrying out of the direct order of the superintendent of the division, after he was advised, “ That the engine was in no condition to haul the train. The packing was blown out of the throttle.”
In view of the character of his employment, the boy was not a trespasser while lie was receiving the papers from the baggage ear, and conceding that he was engaged or employed about the depot within the meaning of the Act of April 4,1868, P. L. 58, the plaintiff was entitled to recover by reason of the negligence of the company in permitting the freight engine to run through the station while the passenger train was standing at that point.
The case was carefully tried in the court below and after a fair submission to the jury of all the disputed facts, no sufficient reason has been shown to warrant our disturbing the verdict as returned by the jury.
The judgment is affirmed.