Minute v. Philadelphia & Reading Railway Co.

Citations

• 264 Pa. 93
• 107 A. 662
• 1919 Pa. LEXIS 599

Syllabus

<p>Negligence — Railroads—Infmi—Trespasser on cars.</p> <p>1. In an action by a boy nine years old against a railroad company to recover for personal injuries, the ease is for the jury where the evidence for plaintiff tends to show that at the time of the accident, the boy crossed the railroad tracks to see his father; that in returning, he climbed on top of a car in a train, with the intention of passing over it, to reach his home; that as he reached the end of the car, a man dressed as a brakeman, with overalls, cap, carrying a brake stick and brakeman’s lantern, appeared at the other end of the same car; that the car started to move with the boy on it, holding fast, when a brakeman on the same car ordered him from the train; that the brakeman threw a piece of coal at the lad, striking him on the back, and called him vile names; that the scared boy was in the act of getting down, when the coal struck him; and that at about the same time the car gave a bump and he fell on the tracks and was injured.</p> <p>2. The evidence was sufficient to sustain an affirmative finding that the man who chased the boy from the train was an employee of the defendant, and that his acts were within the scope of his employment, and the proximate cause of the accident.</p> <p>3. In such a case it is not essential to a recovery that there be present elements of recklessness or gross negligence. Proof of what under ordinary circumstances might be termed “mere negligence” is enough.</p> <p>Practice, G. P. — Pleading—Variance—Appeals—Negligence.</p> <p>4. A judgment on a verdict in an accident case will not be reversed because of the admission of evidence alleged to be at variance with the averments of the statement, where no objection was made at the trial to its admission, no motion was made to strike it out, or for a nonsuit, and on the appeal, no assignment of error raised the question of variance.</p>