Opinion
October 9, 1934.
November 26, 1934.
Negligence — Railroads — Infant trespasser — Ordering from moving train — Identity of alleged brakeman — Evidence.
In an action of trespass, evidence that, after the minor plaintiff had successfully boarded a moving coal car in a train of defendant company as it was passing through the yards of defendant, he was ordered off by a man riding on the next car, who the minor plaintiff assumed was a brakeman, and in attempting to leap from the train suffered the injuries complained of, is insufficient as a matter of law to establish that the unidentified man who was alleged to have frightened the minor from the train was actually a brakeman or other employee of defendant company so as to charge defendant with liability for such person's negligence.
Argued October 9, 1934.
Before FRAZER, C. J., SIMPSON, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeals, Nos. 268-9, March T., 1934, by plaintiffs, from judgment of C. P. Allegheny Co., July T., 1932, No. 4191, in case of Chester Tafelski, a minor, by his father and next friend, John Tafelski, and John Tafelski et ux., in their own right, v. Pennsylvania Railroad Company. Judgment affirmed.
Trespass for personal injuries. Before SMITH, J., specially presiding.
The opinion of the Supreme Court states the facts.
Verdict for minor plaintiff for $10,000 and for parent plaintiffs for $4,098. Judgment n. o. v. entered for defendant. Plaintiffs appealed.
Error assigned was judgment n. o. v., quoting record.
David M. Harrison, for appellants.
Robert D. Dalzell, of Dalzell, Dalzell, McFall Pringle, for appellee.
This is one of the unfortunate class of cases upon which we are from time to time obliged to pass judgment. The minor plaintiff, eleven years and eight months old at the time of the accident, was seriously and permanently injured while alighting from a moving coal car in a train of defendant company as it was passing through the yards of defendant at Carnegie, Allegheny County. Verdicts were rendered in favor of both the minor and his parents. The court later refused a new trial and entered judgment for defendant non obstante veredicto. Plaintiffs appealed.
The minor plaintiff testified that after he had successfully boarded the train, he was ordered off by a man riding on the next car, whom the boy assumed was a brakeman, and in attempting to leap from the train, suffered the injuries complained of. This story was at variance with a statement obtained by the railroad company from the child in the presence of his father shortly after the accident. But even though we assume the truth of the testimony given at the trial, there was not sufficient evidence upon which the jury could find that the unidentified man who is alleged to have frightened the minor from the train was actually a brakeman or other employee of defendant company. This was the vital point in plaintiff's case, for unless the person responsible for the injuries to the child was shown to be defendant's employee, there was no proof of negligence on the part of the railroad company. A careful examination of the record compels us to agree with the court below that the verdicts cannot stand.
Judgment is affirmed in both appeals.