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No. 1.
VOL. I. PHILADELPHIA, PA., JUNE 8, 187
TABLE OF COA1TENTS.
-0-
PMA U.
1. Supreme Court Decisions, -
North Pennsylvania R. R. Co.,
vs. Elias Kirk and Rachael, his
wife,-Commonwealth of Pa.,
vs. Wm. G. Naile, Trustee under
2.
3.
the-will of Henry Sell, dec'd, 1, 2,
Building Permits,
Wills, -
4. Letter of Administration,
5. Mechanic's Liens, -
6. Transfer Record, - -
7. Mortgages, -
8. Judgments, -
3, 8.
4
4
4
-4
4, ;
5,6
0, 7
[Reported expressly for the Penna. Law Record,]
SUPREME COURT OF PENNA.
THE NORTH PENNSYLVANIA RAIL-
ROAD COMPANY
VS.
ELIAS KIRK AND RACHEL S., HIS WIEE.
ERROR TO THE COURT OF COMMON PLEAS OF
MONTGOMERY CouNTY.-DECIDED MAY 7,
1879.
OPINION BY JUDGE WOODWARD.
Action of damages. The words 'parents and
children,' in the Act of the 25th of April, 1855,
are used to inticate the family relation in point
of fact, as the foundation of the right of action,
without regard to age. And 'if there be a rea-
sonable expectation of pecuniary advantage
from a person bearing the family relation, the
destruction of such expectation by negligence
occasioning the death of the party from whom it
arose, will sustain the action.'
This action was brought by Elias Kirk and
his wife, the plaintiffs below, to recover damages
for the injuries they sustained by the death of
their son, caused, as they alleged, by the negli-
gence of the servants of the North Pennsylvania
Railroad Company. At the trial below, the
Court were asked to charge the jury that the
evidence did not show such a relation between
the deceased and the plaintiffs as to entitle them
to recover. It had been shown that the son was
twenty-eight years of age when the accident
happened. He had been away from home at
intervals after he had attained his majority, and
had been in business on his pwn account. He
had returned, however, to his father's house, and
for some months had been rendering services of
various kinds in his father's business, for which
no compensation was paid him. Elias Kirk tes-
tified that when Morris returned from Maryland
he said he would stay and help the witness, and
do anything be should be required to do. Mrs.
Kirk said the services of Morris were of great
value, and that she comi lered his advice of
more value than that of any others. In clear
and forcible terms, that were characteristic of
the whole charge, the jury were instructed posi-
tively that unless they found that the parentage
and filial relation was subsisting, and that there
was reasonable ground to believe that it would
continue to subsist, between the plaintiffs and
iLeir deecaxe I t: 'they could flid only nominal
damages. There has been no departuie from
the rule as laid down in the Penna. R. R. Co.
vs. Adams, 5 P. F. S., 490. The words pa-
rent and children, in the Act of the 26th of
April, 1855, are used to indicate the family rela-
tion in point of fact, as the foundation of the
right of action, without regard to age. And, if
there be a reasonable expectation of pecuniary
advantage from a person bearing the family
relation, the destruction of such expectation by
negligence occasioning the death of the party
from whom it arose, will sustain the action.
The charge was in every way unobjectionable,
and the question was one which it was the prov-
ince of the jury to determine.
Was there evidence of negligence on the part
of the defendants ? Elias Kirk had a coal and
lumber yard on the line of the railroad. A siding
ran from the railroad tra k to a warehouse
on Kirk's land. It was about two hundred and
fifty yards in length. The company had built
that part of the siding extending from the track
to the line of their right of way. The rest of it
had been built by Kirk. It was the usage of the
company to deliver cars consigned to Kirk upon
the siding, and at stated intervals to deposit
upon it cars forming part of and detached from,
their own trains. The key of the switch was in
the possession of John Quinn, who was in the
company's employment at the time of this occur-
9,
rence. During the afternoon of the 12th of
March, 1874, a flat lumber car was standing on
the siding, about one hundred yards distant
from the railroad track, and about one hundred
and fifty yards from the warehouse. It had no
effective brake, and the mooted question whether
it had been sufliciently blocked, was left to and
found affirmatively by the jury. From the track
to the point where the car stood, the grade of the
siding ascended; from that point it descended
over and along a series of coal bins, and from
the coal bins was ascending again towards and
until it reached the warehouse. The car with a
load of lumber consigned to Mr. Kirk, had been
transported from Williamsport and placed on the
siding five days before the accident. About
four o'clock, three flat and fifteen coal cars were
detached from a freight train of the defendants
on its way to Philadelphia. The switch was
l4ineod. and the care ran 1y their own gravity
apon the siding at the rate of three or four miles
an hour. The flat car standing on the track was
struck by the foremost of the approaching cars
so as to start it, and force it on the down grade
over the coal bins, and on the up grade to the
door of the warehouse, which was shut and
barred, and which was broken open. Morris
Kirk, who was sitting in his father's office when
the sound of the approaching train was heard,
hurried toward the warehouse and entered it,
and was found afterwards fastened between a
leaf of the door which the entering car had
broken, and a partition within the building,
standing upright, dead. When the cars entered
on the siding, the brakeman was not on the car
nearest to that struck, but on one further back.
He was called as a witness, and testified; I had
two brakes; the brake on the flat held the cars;
there was only one brake on; there was no brake
on the last car of my train; (the one nearest
to the standing car); that is, it was not down;
if it had been a good brake, I could bai e Qiecked
the train better from the hind car, but that was
not as good as the one I was on.
There was testimony that the car struck by
the detached train belonged to the Northern
Central Railroad Company; that it had been
unloaded the day it was received; that a rule of
the North Pennsylvania Company required that
it should be taken away at the end [of twelve](ViewImageLocal?handle=hein.journals/pennlord1&div=1&collection=&method=preview&ext=.png&size=3)
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