Petrowski v. Philadelphia & Reading Railway Co.

Citations

• 263 Pa. 531
• 107 A. 381
• 1919 Pa. LEXIS 468

Syllabus

<p>Negligence — Railroads—Infant trespasser — Putting off train — ■ Brdkeman — Privately imparted orders — Wilful or “wanton” conduct.</p> <p>1. When in a given ease it is shown that a man, costumed in the garb usually worn by a brakeman, and carrying a red flag or other implement with which such trainmen are generally equipped, was seen performing police duty upon a train, this in the absence of controlling evidence to the contrary is sufficient to sustain a finding that such man was, in fact, an employee of the railroad company operating the train, engaged in guarding its property.</p> <p>2. When an act of such an employee is under investigation, which if properly done, would be consistent with the performance of the duty of guarding the property, it may be inferred, in the absence of evidence to the contrary, that the act was done and performed in the course of his employment.</p> <p>3. Privately imparted orders to brakemen that they shall perform their duties in a specified manner, differing from the way in which a particular brakeman acted at the time of an accident, will not serve to make the latter’s act any less one done in furtherance of the employer’s business, if such act apparently falls within the general scope of the servant’s employment.</p> <p>4. While trainmen are not required to search out and care for infant trespassers, yet, when a child of tender years is observed upon a railroad car, it is the duty of those in charge to see to it that they do not start the train until the infant trespasser has alighted therefrom; or, if the train is actually in motion when such infant is first observed, then the duty is not to commit any overt act which is likely to cause him injury; and if this duty is breached, it is not essential to recovery that there be present any element of recklessness or grossness.</p> <p>5. Where one, knowing that a child of tender years is trespassing upon a vehicle under his care, negligently acts in such a manner as to injure the t