Appeals, Nos. 99 and 103, March T., 1956, from judgment of Court of Common Pleas of Westmoreland County, Aug. T., 1953, No. 122, in case of John H. Malloy, administrator of estate of Michael T. Malloy, deceased, et al. v. Pennsylvania Railroad Company et al. Judgment reversed.
Fred B. Trescher, with him Robert Garland and Kunkle & Trescher, for appellant.
Robert W. Smith, Jr., with him Smith, Best & Horn, for appellant.
Joseph M. Loughran, for appellee.
Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE BELL
The City of Jeannette and the Pennsylvania Railroad appealed from a judgment entered on a verdict against them jointly in favor of the plaintiffs. The important question involved is whether the evidence was
sufficient to establish a prima facie case of negligence against either or both of them and that such negligence was the proximate cause of the accident. The facts pertaining to the cause and the exact place of the accident are very meager. Viewed in the light of the testimony most favorable to plaintiffs and every reasonable inference arising therefrom, the facts are well stated in the opinion of the lower Court as follows:
"On September 11, 1952, the minor was found fatally injured at the foot of a railroad embankment in the City of Jeannette in this County. He was lying close to the foot of the embankment and a few feet away from the near rail of one of the four tracks of the railroad company. The right of way of the railroad company extends in a general easterly-westerly direction. South First Street in the City of Jeannette terminates at the southern side of the railroad cut at the point in question.
"The railroad cut at the point where South First Street meets the right of way of the railroad company is 57 feet in depth.
"On September 10, 1952, the minor, with his parents, had come to the City of Jeannette for a visit with certain of their relatives, and Michael T. Malloy, who was then ten years of age, on the afternoon of September 11, 1952, shortly after 5:30 p.m., left the home of his relatives with his cousin, Maureen Malloy, age sixteen, to play out doors. The two cousins, with several friends, rode bicycles up and down South First Street for some time before deciding to sit and talk in the church yard located approximately one block from the terminus of South First Street near the railroad property. Michael Malloy borrowed a bicycle from a boy named Bobby Hahn, one of the neighborhood children who way playing with him at the time. Maureen testified
that Michael rode the bicycle on South First Street up to a barricade, turned around and back to the church yard at least five or six times.
"At the northern terminus of South First Street there is erected a wooden barricade extending in an east-west direction a distance of 18.84 feet. The barricade is formed of four upright posts and two plank cross pieces. The upright posts are 5 by 7 inches and the planks or cross pieces are 2 by 8 inches. These planks are nailed to the upright posts. The top of the westerly post is about 3.8 feet from the level of the ground; the next post in an easterly direction from there is 3.2 feet from the level of the ground; the third post from the western end of the barricade is 2.65 feet from the level of the ground, and the most easterly post is 3.15 feet in height.
"Maureen Mally stated that she saw Michael go to the barricade on each occasion, with the exception of the last time he rode the bicycle north on South First Street, when she only saw him riding as far as Magee Avenue, which is located approximately 122 feet south of the barricade. After a period of three or four minutes had elapsed and Michael failed to return, Maureen, accompanied by her two companions, Bobby Hahn and Joel Martin, walked on South First Street to the barricade in search of the missing Michael. These young people found the bicycle Michael had been riding lying near the barricade. Maureen and her two friends walked around the north side of the barricade and looked down the railroad cut and saw Michael lying at the bottom of the cut, directly below the barricade. Maureen also testified that she noticed a mark about a foot or so in length extending down the embankment as she looked down and saw her cousin lying at the bottom of the cut.
"One Joseph Gurksnis, a resident of the City of Jeannette, testified that about 5:30 p.m. the day of the accident he was walking across the Second Street Bridge, which is located about one block west of South First Street. Mr. Gurknis testified that looking eastward from the bridge he could see the barricade at the end of South First Street; that he looked at it and as he looked, he saw an object*fn1 rolling or falling, stirring up a cloud of dust, down the embankment directly below the barricade located on South First Street. When he first saw the object, he located it as being 10 or 12 feet below the barricade rolling down the railroad embankment and that it fell down into the cut and landed right on a pathway down there near the tracks. The witness then ran across the bridge and saw that the object was a body of a boy lying at the foot of the embankment immediately below the barricade. He summoned help from a nearby store and walked up the cut with a police officer where they found the body of the minor, Michael T. Malloy, on the pathway between the the foot of the embankment and the railroad tracks. He testified that the body was lying at a point directly below the barricade located on South First Street.
"A Miss Coletta McCartney testified that she lives in a house located at the corner of Magee Avenue and South First Street, which house extends in its length along South First Street. At the time of the accident, Miss McCartney was sitting on the porch of her home with her aged mother at the westerly side of the house. She testified that this section of South First Street, between the barricade and Magee Avenue, was used as ...