Dattola v. Burt Bros., Inc.

• Decision Date: 03 January 1927
• Docket Number: 231
• Citation: 288 Pa. 134,135 A. 736
• Parties: Dattola et ux., Appellants, v. Burt Bros., Inc
• Court: Pennsylvania Supreme Court

135 A. 736

288 Pa. 134

Dattola et ux., Appellants, v. Burt Bros., Inc

No. 231

Supreme Court of Pennsylvania

January 3, 1927

Argued November 29, 1926

Appeal, No. 231, Jan. T., 1926, by plaintiffs, from judgment of C.P. No. 3, Phila. Co., Dec. T., 1924, No. 12268, for defendant n.o.v., in case of Dominic Dattola et ux. v. Burt Bros., Inc. Reversed and new trial granted.

Trespass for death of child of tender years. Before McMICHAEL, P.J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiffs for $3,300, on which judgment was entered for defendant n.o.v. Plaintiffs appealed.

Error assigned was, inter alia, judgment for defendant n.o.v quoting record.

The judgment is reversed and a new trial is granted.

H Eugene Heine, with him William J. McMenamin, for appellant. -- The rule that the burden of proving contributory negligence is on defendant would appear clearly to be the settled law of this State: Coolbroth v. R.R., 209 Pa. 433; Germanton v. Shafer, 66 Pa.Super. 175; McManamon v. Twp., 232 Pa. 439; Waltosh v. R.R., 259 Pa. 372.

It is not the law that the fact that a child is discovered alone on a public highway is presumptive evidence of negligence on the part of the parents: Evers v. Traction Co., 176 Pa. 376; Woeckner v. Motor Co., 182 Pa. 182; Del Rossi v. Cooney, 208 Pa. 233.

George Gowen Parry, with him Harold C. Roberts, for appellee. -- A presumption of contributory negligence on part of plaintiffs arises from the fact that the child, when injured, was alone and unprotected in a city street several blocks from its home and this presumption, in the absence of any evidence of care exercised by plaintiffs, is conclusive: Glassey v. Ry., 57 Pa. 172; Pitts., C. & M. Ry. v. Pearson, 72 Pa. 169; Pa. R.R. v. James, 81* Pa. 194; Cauley v. Ry., 95 Pa. 398; Parotta v. Ry., 40 Pa.Super. 138; Del Rossi v. Cooney, 208 Pa. 233.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE WALLING:

Morris Street, extending in an easterly and westerly direction, crosses Eleventh Street, Philadelphia, at right angles. There is a meat market on the northwest corner, in front of which, in Morris Street, a truck was standing on December 20, 1924, when plaintiffs' child, a boy four or five years old, in passing south on the west side of Eleventh Street, stepped out from behind the standing truck and was killed by defendant's eastbound auto truck. The evidence as to the speed of the latter and other matters bearing on the question of defendant's negligence was conflicting. The case was submitted to the jury and a verdict of $3,300 given plaintiffs, for the death of the child. Later the trial court entered judgment for the defendant non obstante veredicto on the sole ground that the presence of the child in the street, unattended, raised a presumption of negligence against the parents, which the proof failed to rebut. The only evidence as to that was the testimony of the father, who lived near by, that he thought the child was playing upstairs. The trial court's position, while not without some semblance of support in the case, is untenable. The burden is on plaintiff to prove defendant's negligence without disclosing fault on his part, but he is not required to disprove contributory negligence: Murphy v. Phila. Rapid Transit Co., 285 Pa. 399, 406; Martin v. Southern Pa. Traction Co., 261 Pa. 96; Waltosh v. Penna. R.R. Co., 259 Pa. 372; McManamon v. Hanover Twp., 232 Pa. 439; Coolbroth v. Penna. R.R. Co., 209 Pa. 433; Fitzpatrick v. Union Traction Co., 206 Pa. 335; Baker v. Gas Co., 167 Pa. 593; Bradwell v. Ry. Co., 139 Pa. 404; Penna. Canal Co. v. Bentley, 66 Pa. 30. A plaintiff need not prove negatively that he was not guilty of contributory negligence (Clark v. Lancaster, 229 Pa. 161), while he who avers a fact in excuse of his own misfeasance must prove it: Beatty v. Gilmore, 16 Pa. 463. Parents are presumed to do their duty and the mere fact that a child of tender age is momentarily found alone in a public street does not as matter of law establish the contrary. The mere happening of an accident neither proves negligence nor contributory negligence. Knowingly to permit a small child to wander unprotected upon city streets is want of care, but here the record is barren of any evidence of such permission. The presence of a child upon the street may be the result of parental negligence or in spite of its vigilance, and, in the absence of any explanation, a court cannot declare it the former. The question of parental care, or the lack of it, is one of fact and usually for the jury: McKinney v. Baltimore & O.R.R. Co., 247 Pa. 217; Davis v. Westmoreland Co. Ry. Co. 222 Pa. 356; Del Rossi v. Cooney, 208 Pa. 233; Enright v. Pittsburgh Junction R.R. Co., 204 Pa. 543; Jones v. Traction Co., 201 Pa. 346; Woeckner v. Erie Electric Motor Co., 182 Pa. 182; Evers v. Philadelphia Tract. Co., 176 Pa. 376; Lederman et ux. v. R.R. Co., 165 Pa. 118; Dunseath v. Traction Co., 161 Pa. 124, 130; Phila. & Reading R.R. Co. v. Long, 75 Pa. 257; P.A. & M. Ry. Co. v. Pearson, 72 Pa. 169; Zimmerman et ux. v. Younker et al., 84 Pa.Super. 36; Loughran v. Thomas Bros. Co., 65 Pa.Super. 302; Fineman v. Phila. Rap. Trans. Co., 42 Pa.Super. 379; Corpies v. Sand Co., 31 Pa.Super. 107; Addis v. Hess, 29 Pa.Super. 505; Karahuta v. Traction Co., 6 Pa. Superior Ct. 319. Parents are not required to do the impossible in caring for their children. See Henne v. Ry. Co., 1 Pa. Superior Ct. 311, 316. In cases where the court has adjudged the parents guilty of negligence they were shown otherwise culpable, as where the injury occurred in presence of the parent (Johnson et ux. v. Ry., 160 Pa. 647), or where the child had been sent into the street upon an errand (Sullenberger v. Chester Trac. Co., 33 Pa.Super. 12), or was knowingly suffered to go upon the street (Rapaport v. Pittsburgh Rys. Co., 247 Pa. 347), or where the parent permitted the child to engage in a hazardous business (Smith v. Hestonville, etc., Passenger Ry. Co., 92 Pa. 450; McCool v. Coal Co., 150 Pa. 638), or permitted it, in his presence, to do the act resulting in the injury (Kuehne v. Brown, 257 Pa. 37; Watson v. Hiland Grove Traction Co., 68 Pa.Super. 332).

There are also cases where children injured upon railroad tracks have been held trespassers in spite of their tender years, of which Duff v. Allegheny Valley R.R. Co., 91 Pa. 458; Cauley v. Pitts., Cincinnati and St. Louis Ry. Co., 95 Pa. 398; Moore v. Pennsylvania R.R. Co., 99 Pa 301; Westerberg v. R.R. Co., 142 Pa. 471, are typical. In the instant case the child was on the public highway, where of right people might be, and we have found no case where the court has declared the parents negligent unless something more appeared than the child's mere presence in the street on the occasion of the accident. Appellee relies upon Glassey v. Hestonville, etc., Passenger Ry. Co., 57 Pa. 172. But that case however, turned upon the contention, denied by the lower court, that a father who knowingly permitted his four-year-old child to be upon the public streets, unprotected, was negligent. This court there says: "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 duty. A father has no right to expose his child to such dangers, and, if he does, he fails in performance of his duty, and is guilty of negligence. The security of the community, and especially of children demands the assertion of this doctrine." There is nothing in the body of the opinion to the effect that the mere presence of a child upon the street, without more, raises a presumption of negligence against the...