Barto v. Pennsylvania Railroad

Opinion by

Orlady, J.,

A son of the plaintiff’s, aged seven years, was killed while crossing the tracks of the defendant company and the material question on the trial in the court below was whether the child attempted to cross the tracks at a public street crossing or at fifteen to twenty-five feet distant therefrom.

On this question, as well as every other important one in the case the testimony was conflicting. While the witnesses were familiar with the crossing and its surrounding objects and a number of them saw the child but a moment before he entered upon the tracks of the company, they differed in several significant particulars.

The train which caused his death was a fast freight of thirty-two cars and scheduled to run at thirty miles per hour. When it approached the crossing the engineer saw some children near to the track and noticed that the watchman at the crossing was signaling them to stop or keep back. He saw this little boy pass the front end of the engine, but too late to avoid the accident as he was not certain that the child had been struck until he made inquiry of the fireman whose station was on the opposite side of the engine from the one occupied by him. The train was promptly stopped and the dead body was found some distance from the crossing.

It was testified to by several eyewitnesses that the train was moving at an unusual speed — as fast as an express passenger train; that no whistle was sounded nor bell rung; that a train going in an opposite direction had just passed the crossing and that the watchman was standing with his back in the direction from which the boy came, and most important of all, it was shown that at the inquest which was held a few days subsequent to the accident, when the details of the tragedy were naturally fresh in the minds of the parties immediately associated with it, the track or crossing watchman stated that the child was crossing the track beyond or below and not on the regular public crossing, — when the engineer interrupted him and stated that he had hit him right on or at the crossing. Four witnesses testified that the engineer so stated at the inquest. On the trial the engineer with exceptional frankness, would not fix with any definiteness the exact place where his engine struck the boy.

The whole case centered on this one question, and the testimony was so conflicting that it became the duty of the court to refer its solution to the jury, which was done in a careful and adequate manner.. In regard to this the trial judge said: “If this boy voluntarily left Eighth street, the public highway, and undertook to run over and across these tracks, at a point where there was no highway, then he was a trespasser and there can be no recovery and your verdict must be for the defendant; whether he did or did not is for you to determine, your duty is to take the law from me and your further duty is to find the facts from the testimony.”

The evidence in relation to wages usually paid for the services of boys between fourteen and twenty-one years of age in that community, was not offered as coming from an expert, but as a statement of facts within the personal knowledge of the witness, Harry Koons, and related to facts so generally within the common knowledge of jurors that it could not have any effect for or. against either party to the action. It might well have been excluded, but having been received it was a harmless and not reversible error.

The case was ably and fairly tried and the verdict was reasonably to be expected from the preponderance of the testimony in the plaintiff’s favor.

The judgment is affirmed.