Terletski v. Philadelphia & Reading Ry. Co.

Citations

• 264 Pa. 35
• 107 A. 372
• 1919 Pa. LEXIS 586

Syllabus

<p>Negligence — Railroads — Infant trespasser — Frightening hoy from car — Proximate cause — Concurrent causes — Res gestee — Pleading — Allegata and prohata — Nonsuit.</p> <p>1. In an action by a boy eleven years old against a railroad company for damages for personal injuries, where the statement of claim avers that while the plaintiff was on a car of the defendant, employees of the defendant “carelessly and negligently set the said car in motion, causing and requiring plaintiff to leave the car while in motion, in consequence of which he was thrown from his position” and injured, it is reversible error for the court to exclude evidence to the effect that a brakeman, who saw plaintiff get on the car, approached him from another car immediately after the ear had started by a signal from the brakeman, and by threatening gestures, with a club in his hand, frightened him off; and it is also error to enter a nonsuit.</p> <p>2. The manner in which plaintiff was required to get off the car was part of the res gestas and plaintiff was not required to set it forth in his pleadings.</p> <p>3. The signal given to start the train, when the brakeman, who gave it, knew that the boy was on one of the cars, was itself a negligent act; but the starting of the car was not in itself what caused the injury, the starting of the car ^nd the frightening of the boy from it were concurrent causes of the injury, so averred in the statement of claim.</p> <p>4. In such a case, as the pleadings were sufficient to justify the admission of the excluded testimony, and to sustain a verdict for plaintiffs, the case ought not to have been taken from the jury.</p>