Mitchell v. Phila. W. & B. R.

A boy, between nine and ten years of age, walking along a railroad, not at a public crossing or any place where he had a right to be, was injured by being struck by an unloaded and unattached car, immediately after stepping upon the track: being a mere trespasser, he was not entitled to recover damages therefor.

APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS NO. 4 OF PHILADELPHIA COUNTY. No. 13 January Term 1890, Sup. Ct.; court below, No. 77 December Term 1887,' C. P. No. 4. On December 10, 1887, William R. Mitchell, by his next friend William C. Mitchell, brought trespass against the Philadelphia, Wilmington & Baltimore Railroad Co., to recover damages for personal injuries. Issue. At the trial on January 17, 1889, it was shown in the case of the plaintiff, as was claimed from the testimony, that he was nine years and six months old on May 13,1886, and lived with his parents on the line of the defendant’s railroad, at Morton, Delaware county; that on the day stated, while •walking on the ends of the ties of one of the tracks, near his- home, he was knocked down and run over by two empty flat cars which were moving by their own momentum, there being no engine attached; that the cars were in charge of a brakeman, no warning of any kind was given, and the brakeman was looking in his direction. At the close of the plaintiff’s testimony, on motion of the defendant, the court, Arnold, J., ordered that judgment of nonsuit be entered, with leave, etc. A rule to show cause why the judgment should not be vacated having been discharged, after argument before the court in banc, the plaintiff took this appeal, assigning the entry of said judgment and the refusal to vacate it as error.