delivering the opinion of the court:
The court, after argument and full consideration, is satisfied that the eighth count of plaintiff’s declaration is sufficient in law in that it alleges that the plaintiff was rightfully on the premises of the defendant, whereby the duty arose upon the part of the defendant to exercise reasonable and proper care in the movement and management of its trains, and the allegation of negligence is sufficiently charged in the words used, viz.: “ Carelessly and negligently ran one of its freight trains into the said Delaware Avenue station, and along the side of the said mail and passenger train of the defendant, without giving any warning regarding its movements, and while the said passenger train was stopped,” etc.
The averment of no warning being given was vital, and without such an averment another question would be presented.
In the case of MacFeat's Administrators v. P., W. & B. R. R. Co., (decided by this court in 1904) 5 Penn. 66, 62 Atl. 906, the law governing the giving of warning was laid down in the following language: “It is the duty of a railroad company to give timely and sufficient warning by bell, whistle or otherwise, of the approach of trains, and to run its trains at a rate of speed proper and reasonable under the circumstances, and if the defendant failed to make use of such usual and appropriate means to warn the deceased at the time and place of the accident, it would be negligence on its part.”
The demurrer is overruled.