
    Tafelski et al., Appellants, v. Pennsylvania Railroad Company.
    Argued October 9, 1934.
    Before Frazer, C. J., Simpson, Schaffer, Maxey, Drew and Linn, JJ.
    Trespass for personal injuries. Before Smith, J., specially presiding.
    
      
      David M. Harrison, for appellants.
    
      Robert D. Dalzell, of Dalsell, Dalzell, McFall & Pringle, for appellee.
    November 26, 1934:
   Per Curiam,

This is one of the unfortunate class of cases upon which we are from time to time obliged to pass judgment. The minor plaintiff, eleven years and eight months old at the time of the accident, was seriously and permanently injured while alighting from a moving coal car in a train of defendant company as it was passing through the yards of defendant at Carnegie, Allegheny County. Verdicts were rendered in favor of both the minor and his parents. The court later refused a new trial and entered judgment for defendant non obstante veredicto. Plaintiffs appealed.

The minor plaintiff testified that after he had successfully boarded the train, he was ordered off by a man riding on the next car, whom the boy assumed was a brakeman, and in attempting to leap from the train, suffered the injuries complained of. This story was at variance with a statement obtained by the railroad company from the child in the presence of his father shortly after the accident. But even though we assume the truth of the testimony given at the trial, there was not sufficient evidence upon which the jury could find that the unidentified man who is alleged to have frightened the minor from the train was actually a brakeman or other employee of defendant company. This was the vital point in plaintiff’s case, for unless the person responsible for the injuries to the child was shown to be defendant’s employee, there was no proof of negligence on the part of the railroad company. A careful examination of the record compels us to agree with the court below that the verdicts cannot stand.

Judgment is affirmed in both appeals.  