Glassey v. Hestonville, &C., Passenger Railway Co.

• Citation: 57 Pa. 172
• Parties: Glassey <I>versus</I> The Hestonville, Mantua and Fairmount Passenger Railway Company.
• Decision Date: 10 February 1868
• Court: United States State Supreme Court of Pennsylvania

57 Pa. 172

Glassey versus The Hestonville, Mantua and Fairmount Passenger Railway Company.

Supreme Court of Pennsylvania.

February 4, 1868.

February 10, 1868.

February 4th 1868.

Before THOMPSON, C. J., STRONG, AGNEW and SHARSWOOD, JJ. READ, J., at Nisi Prius

Error to the District Court of Philadelphia: No. 438, to January Term 1867.

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I. Hazlehurst, for plaintiffs in error, cited Hoyesburger v. Second Avenue Railroad, Leg. Int. October 18th 1867; Smith v. O'Connor, 12 Wright 218; Mangon v. Brooklyn City Railroad, 36 Barb. 230; Wright v. Malden and Mehon Railroad, 4 Allen 283.

C. Hart, for defendant in error, referred to and commented on the last two cases cited for plaintiffs in error.

The opinion of the court was delivered, February 10th 1868, by STRONG, J.

In Smith v. O'Connor, 12 Wright 223, we said that when an action is brought by a father for an injury to his infant son, it may be that the father should be treated as a concurrent wrongdoer. The evidence may reveal him as such. His own fault may have contributed as much to the injury of the child, and consequently to the loss of service due him, as did the fault of the defendant. He owes to the child protection. It is his duty to shield it from danger, and his duty is the greater, the more helpless and indiscreet the child is. If by his own carelessness, his neglect of the duty of protection, he contributes to his own loss of the child's services, he may be said to be in pari delicto with a negligent defendant. We hold such to be the law. Though an infant of tender years may recover against a wrongdoer for an injury which was partly caused by his own imprudent act, an adult father cannot. And it makes no difference whether the injury of which he complains was to his absolute, or to his relative rights.

Protection then being a paternal duty, entire failure to extend it must be negligence. Generally what is and what is not negligence is a question for a jury. When the standard of duty is a shifting one, a jury must determine what it is as well as find whether it has been complied with. Not so when the law determines precisely what the extent of duty is, and there has been no performance at all. Now it would be strange were we not to hold that knowingly to permit a child less than four years old to run at large and without any protector, in the public streets of a large city, traversed constantly by railway cars and other vehicles, is not a breach of parental...