Terletski v. Philadelphia & Reading Ry. Co. , 264 Pa. 35 ( 1919 )

Opinion by

Mr. Chief Justice Brown,

At the time Joseph Terletski sustained the injuries for which this action was brought he was eleven years of age. The cause of action is thus set forth in the statement of claim: “The plaintiff, Joseph Terletski, on or about the 8th day of May, A. D. 1915, about eight o’clock a. m., was at or about the roadway of the defendant company, in front of the American Pulley Works at or about the point where the Point Richmond Division of the Philadelphia & Reading Railway Company passes beneath the Chestnut Hill & Germantown Division of the Pennsylvania Railroad, and while thus about the said roadway or upon a certain car of the defendant company, the employees of the defendant company carelessly and negligently set the said car in motion, causing and requiring the said plaintiff to leave the said car while in motion, in consequence of which he was thrown from his position, and sustained the injuries hereinafter more fully described.” The cause of action as set forth in the pleadings was supported by the testimony. The boy testified that, when he got on the car, the train was standing still, and that a brakeman who saw him get on approached him from another car immediately after the train started, and by threatening gestures, with a club in his hand, frightened him off. Joseph A. Gallagher, a witness to the occurrence, after stating that he saw the signal given to the engineer by the brakeman to go ahead, testified as follows: “Q. When he gave that signal, where was the boy? A. He was about this far (indicating) on the car then. Q. Did the brakeman see the boy? Was he in a position to see him? A. He has got to see the boy. Q. Why? A. He is looking right down at him. ......Q. Could the brakeman see this boy? A. Yes, sir......Q. Was the boy within sight of the brakeman? A. Yes, sir.”

At the close of the testimony offered by the plaintiffs counsel for the defendant moved the court to strike out all offered in relation to the alleged acts of the brakeman of a threatening nature towards the boy, for the reason that there was no averment in the plaintiffs' declaration of a wilful and deliberate act by any brakeman in charge of the train. The motion was allowed. Thereupon a motion was made for a nonsuit, and this, too, was allowed, the learned trial judge saying in allowing it: “The plaintiffs have set out certain allegations as the cause of this accident, and then they have gone on to show other causes than those alleged. In other words, they have brought the defendant into, court to answer one state of facts, and they have proved another state.” Each of the motions should have been denied. The negligence charged against the defendant, as set forth in plaintiffs’ statement of claim, is the starting of one of its trains by its employees when they saw the injured plaintiff — a boy but eleven years of age — on an open car forming a part of the train, and “requiring the said plaintiff to leave the said car while in motion, in consequence of which he was thrown from his position, and sustained the injuries” of which he complains. The manner in which he was required to get off the car was part of the res gesta}, and the plaintiffs were not required to specifically set it forth in their pleadings.

The signal given to start the train, when the brakeman who gave it knew the boy was on one of the cars, was in itself a negligent act: Trevethan v. Phila. & Reading Ry. Co., 244 Pa. 414; but the starting of the train was not in itself what caused the injury to the plaintiff. The starting of it and the frightening of the boy from it were concurrent causes of his injury, and it is so averred in the statement of claim. Simultaneously with the starting of the train the boy was frightened off the car by the employee of the defendant, according to the proofs in the case, and as the pleadings were clearly sufficient to sustain a verdict for the plaintiffs, the case ought not to have been taken from the jury.

The first and second assignments of error are sustained and the judgment is reversed with a procedendo.