Biddle v. Hestonville, Mantua & Fairmount Passenger Railway Co.

• Decision Date: 03 May 1886
• Docket Number: 132
• Citation: 4 A. 485,112 Pa. 551
• Parties: Biddle and Wife v. The Hestonville, Mantua & Fairmount Passenger Railway Co
• Court: Pennsylvania Supreme Court

4 A. 485

112 Pa. 551

Biddle and Wife v. The Hestonville, Mantua & Fairmount Passenger Railway Co

No. 132

Supreme Court of Pennsylvania

May 3, 1886

Argued April 9, 1886

ERROR to the Court of Common Pleas, No. 3, of Philadelphia county Of January Term, 1886, No. 132.

This was an action of trespass on the case brought by Francis F Biddle and Martha Biddle, parents of Clarence Biddle, to recover damages for the death of their son through the alleged negligence of the defendants.

Plea, not guilty.

On the trial before LUDLOW, P.J, the following facts appeared:

Clarence Biddle, about twelve years old, son of the plaintiffs, the boy who was killed, was, with two other boys, in Fairmount Park. They came to defendant's car, which was a one-horse car, and was standing at the foot of George's Hill; the driver was inside the car, a boy by the name of Solnack was on the front platform holding the reins. Young Biddle asked this boy, Solnack, permission to get upon the car. He replied: "I can't let you on; I don't own the car;" and then added, "Well, jump on." The boys jumped on. The car had gone but a short distance when the driver came to the door of it and finding the boys on the platform ordered them off. The boys did not get off, and a little further on he came out again, and finding they had disregarded his order, he again ordered them off. He came out a third time, and said in a threatening manner, "You boys get off of here!" The boy that was driving said to the smallest boy, the one that was killed: "Wait, Clarence, I will stop for you;" and he immediately began to tighten the brake, but the driver rushed at him, shoved him away from the brake, and just as he (Clarence) was going off, backward, the speed of the car increased with a jerk, as the brake was released, and flew round; and he was thrown under the wheels -- crushed, and died, the speed of the car being such that both wheels passed over the centre of his body before it stopped. The driver did not ask the boy for fare.

After the plaintiffs had closed their testimony, on motion of the defendant, the court granted a nonsuit. The plaintiffs moved the court to take this off, which the court in banc refused to do.

Judgment of nonsuit was therefore entered, whereupon the plaintiffs took this writ, assigning for error the action of the court in refusing to take off the nonsuit.

The judgment is reversed and a new venire ordered.

Richard P. White (George H. Earle, Jr., and P. F. Devers with him), for plaintiffs in error.

1. In Creed v. R.R., 86 Pa. 146, Mr. Justice GORDON says: "It was certainly correct to say 'that if a person not connected with the company travels by a passenger train, presumably he is traveling as a passenger, and for a consideration;" in other words he is presumed to have paid his fare, or to be ready to pay it when called upon. To presume otherwise would be to presume such an one was a trespasser; but this is an affirmative proposition, the proof of which rests upon the one alleging it."

See also Company v. Brook, 7 P.F.S., 339. And it was further held that where such presumption exists, "it is sufficient to carry the case to a jury, although rebutted:" Company v. Weirs, 87 Pa. St., 447; Company v. Miller, Id. 395; Company v. Schultz, 93 Pa. St., 341.

2. Even if the lad was a trespasser he was entitled to be protected against unnecessary injury on the part of those exercising the right of removing him, and there is no justification for doing it so recklessly or carelessly as to imperil his life and cause the loss of a limb: Lynch v. Morden, 1 Ad. & El., N.S. 29; see also Clark v. Chambers, 3 Q.B., 327; see also Radley v. R.R. Co., 1 App. C., 754.

Our exact case was presented to the Supreme Court of Massachusetts in Lovett v. Company, 9 Allen, 557. To the same effect see Wilton v. Railway Company, 125 Mass. 131; Lane v. Works, 107 Mass. 104; Lane v. Works, 111 Mass. 136; Wilton v. Company, 107 Mass. 108; Brennan v. Railway Co., 45 Conn. 284; Hoffman v. R.R., 87 N.Y. 25; Rounds v. Company, 64 N.Y. 129; Company v. Nix, 68 Georgia, 583; Company v. Garrett, 8 Lea, 438; Gallena v. R.R., 13 Fed. R., 116; Meeks v. Company, 56 Cal. 513, and Kline v. Company, 37 Cal. 401.

Finally, in our own state, your honors have time and time again ruled, that the mere leaving of trespassing children on the platforms of street-cars, with knowledge that they are there, makes the company that destroys them liable: Company v. Caldwell, 74 Pa. St., 421; Company v. Donahue, 70 Pa. St., 119; Rauch v. Lloyd, 31 Pa. St., 358; Company v. Hassard, 76 Pa. St., 367; Company v. Toomey, 91 Pa. St., 256; Troutman v. R.R. Co., 11 W.N.C., 453; Van Kirk v. Company, 76 Pa. St., 66; Company v. Lewis, 79 Pa. St., 33; Company v. Orr, 83 Pa. St., 332; Hestonville v. Gray, 3 W.N.C., 422; Company v. Boudron, 11 Norris, 475.

Remembering that this was a wrong of commission against a mere child, whose danger was fully known, we only ask the same protection that the merciful law has thrown around a dog (Vere v. Lord, 11 East, 568), where Lord ELLENBOROUGH, C.J., says: "The question is whether the plaintiff's dog incurred the penalty of death for running after a hare in another's ground? And, if there be any precedent of that sort, which outrages all reason and sense, it is of no authority to govern other cases.") A hog, Kerwhacker v. Company, 3 Ohio 172. An ass, Davies v. Mann, 10 M. & W., 545. And an oyster, Mayor v. Brook, 7 Q.B., 339.

Samuel Gustine Thompson, for defendant in error.

1. Clarence Biddle was a trespasser and the defendant owed him no duty: Hestonville Railway Co. v. Connell, 7 Norris, 522; Moore v. R.R. Co., 11 W.N.C., 311; R.R. v. Hummell, 8 Wr., 115; Clanly v. R.R., 14 Norris, 399; Duff v. R.R., 10 Norris, 458; Flower v. R.R., 19 P.F.S. 40.

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

OPINION

Mr. Justice GORDON

That the defendant's driver, or conductor, was grossly negligent in compelling a child of twelve years of age to jump, and that backwards, from the platform of a moving car no one can well deny. Even the boy Solnack knew better than that, and did what he could to prevent the...