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SHAW v. PENNSYLVANIA RAILROAD COMPANY (05/25/53)

May 25, 1953

SHAW, APPELLANT,
v.
PENNSYLVANIA RAILROAD COMPANY



Appeal, No. 110, Jan. T., 1953, from judgment of Court of Common P leas No. 6 of Philadelphia County, Dec. T., 1949, No. 6669, in case of James Richard Shaw, a Minor, by his Guardian, Howard Shaw, and Howard Shaw et ux., in their own right, v. Pennsylvania Railroad Company. Judgment affirmed.

COUNSEL

Isadore H. Bellis, with him Maurice H. Brown and Robert M. Bernstein, for appellant.

Philip Price, with him William H. Lowery and Barnes, Dechert, Price, Myers & Rhoads, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Bell

[ 374 Pa. Page 9]

OPINION BY MR. JUSTICE BELL

James R. Shaw, minor plaintiff, who was twelve years old at the time of the accident on November 26,

[ 374 Pa. Page 101949]

, was severely injured while climbing over one of defendant's freight cars. In the vicinity of the accident, five sets of tracks ran in a general north-south direction. Plaintiff testified on his own behalf as follows: He and three friends were returning from a visit to the Soldiers' and Sailors' Home in Erie, Pennsylvania, which is located on the west side of the railroad tracks. A well-beaten foot path started on plaintiff's grandmother's property and extended to the east side of the tracks; some distance away another well-beaten foot path extended from the west side of defendant's tracks to the Soldiers' and Sailors' Home. Plaintiff decided to cross the tracks. The crossing being blocked by a train of freight cars, plaintiff climbed over a car on the nearest track. He then discovered that there were freight cars on another track which he likewise decided to cross. He climbed aboard a flat car and had gotten halfway across it when the train started with a jerk and threw him under the wheels. He and other children and adults on prior occasions had climbed over the cars when they blocked the crossing at the end of the path, and he testified that this had been going on for a long time and that employees of the defendant knew about it.

The jury returned a verdict in favor of plaintiff in the amount of $50,000.00 and awarded no damages to his parents. The court en banc granted defendant's motion for judgment n.o.v. and from the entry of such judgment plaintiff has appealed.

In an appeal from a judgment non obstante veredicto plaintiff is entitled to the testimony most favorable to him with all reasonable inferences therefrom, and all conflicts in the testimony must be resolved in his favor: Lanni v. P.R.R., 371 Pa. 106, 88 A.2d 887.

Applying this well-established principle to the facts in the instant case the jury ...


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