Smith v. Hestonville, &C., Pass. Railway Co.

• Decision Date: 02 February 1880
• Parties: Smith <I>versus</I> The Hestonville, Mantua and Fairmount Passenger Railway Company.
• Court: Pennsylvania Supreme Court

92 Pa. 450

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

Supreme Court of Pennsylvania.

January 14, 1880.

February 2, 1880.

January 14th 1880.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, and TRUNKEY, JJ. STERRETT and GREEN, JJ., absent

Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1879, No. 264.

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A. Sidney Biddle, for plaintiff in error.—The defendant was negligent in allowing so young a child to ride upon the platform. So also in not having a guard to the platform, and in not stopping the car to allow the child to alight: Fairmount & Arch Street Passenger Railroad Co. v. Stutler, 4 P. F. Smith 375; P. A. & M. Passenger Railway Co. v. Caldwell, 24 Id. 421; Crissey v. Hestonville Railroad Co., 25 Id. 83; Philadelphia City Passenger Railway Co. v. Hassard, Id. 367; Gray and Bell v. Scott and Wife, 16 Id. 348; Drew v. Sixth Avenue Railway Co., 26 N. Y. 49; Colgan v. West Philadelphia Passenger Railway Co. 4 W. N. C. 401; Kay v. Penna. Railroad Co., 15 P. F. Smith 276. There was no proof of contributory negligence on the part of the child, and if his negligence had contributed to the accident, his youth was sufficient to prevent the inference of contributory negligence against him: Rauch v. Lloyd, 7 Casey 358; Johnson v. The West Chester & Philadelphia Railroad Co., 20 P. F. Smith 357. Nor was there contributory negligence on the part of the mother. She knew the child was in the habit of carrying water to the driver, but she could not have foreseen an accident which could not have happened except for the gross carelesness of defendant: Pennsylvania Railroad Co. v. Ogier, 11 Casey 72; Gray et al. v. Scott et ux., 15 P. F. Smith 345. The permission of the mother to the child to carry water was not the proximate cause of an accident which resulted from defendant's negligence: Drew v. Sixth Avenue Railroad Co., 26 N. Y. 49; Cosgrove v. Ogden, 49 Id. 245; Pennsylvania Railroad Co. v. Lewis, 29 P. F. Smith 33.

The Act of April 26th 1855, Pamph. L. 309, was a supplement to the Act of April 15th 1851, Pamph. L. 674. It was the purpose of the Act of 1855 to substitute the personal representatives of the deceased for him, and the sum to be recovered being theoretically part of the estate of the deceased, which the law then proceeds to distribute according to the directions of the statute, it is difficult to see how any contributory negligence on the part of the statutory plaintiff can have any effect in debarring the recovery.

Samuel Gustine Thompson, for defendant in error.—The presumption is that proper care was exercised by the company, and that presumption must be overcome by him who asserts otherwise. A person who asserts he has received an injury from defendant's negligence, must prove it, and if no such proof be adduced the presumption of innocence remains, and it is error to submit to the jury whether there was negligence or not: Railroad Co. v. Heil, 5 W. N. C. 93; Clark v. Railway Co., Id. 119; Wiebrand v. Eighth Avenue Railroad Co., 3 Bosw. 313. It was negligence, per se, to permit a child of such tender years to engage in an employment attendant with so many risks: Kay v. Pennsylvania Railroad Co., 15 P. F. Smith 276; Railroad Co. v. Hummell, 5 Wright 376; Philadelphia & Reading Railroad Co. v. Long, 25 Id. 257; Glassey v. Hestonville Passenger Railroad Co., 7 Id. 172; Smith v. O'Connor, 12 Wright 223; P. A. & M. Railroad Co. v. Pearson, 22 P. F. Smith 171; Pennsylvania Railroad Co. v. Lewis, 29 Id. 33.

Mr. Justice TRUNKEY delivered the opinion of the court, February 2d 1880.

Previous to the accident which caused the death of the plaintiff's son, he and older boys had been in the habit of supplying with water to drink, the drivers and conductors, who encouraged them to do this by giving them pennies. At the time, the plaintiff's child was at the defendant's cars for that purpose. The plaintiff not only had knowledge of this habit, which began before the summer vacation of the public school and was continued in the vacation, but she permitted it. She saw the money her child made, furnished him with cup and pitcher, and cautioned him to be careful in getting on and off the cars.

The child was not seven years of age. He was incapable of negligence, and could not use the care required of a mature person under like circumstances. His business was with the defendant's employees — to give them water and receive a reward. This is not the case of a child having occasion to cross the track in going to school, or for other purpose; nor of one that had wandered into the street without the parent's knowledge; nor even of one permitted to...