Erie City Pass. Ry. Co. v. Schuster

• Decision Date: 04 October 1886
• Parties: ERIE CITY PASS. RY. CO. v. SCHUSTER, by her Next Friend.
• Court: Pennsylvania Supreme Court

6 A. 269
113 Pa.St. 412

ERIE CITY PASS. RY. CO.
v.
SCHUSTER, by her Next Friend.¹

Supreme Court of Pennsylvania.

October 4, 1886.

Error to common pleas, Erie county.

Case by Minnie Schuster, by her next friend, Isaac Oppenheimer, against the Erie City Passenger Railway Company. The facts of the case are fully set forth in the opinion of the supreme court. Verdict and judgment for plaintiff, whereupon defendant took this writ.

John P. Vincent, for plaintiff in error.

The driver had a right to presume that even a child would not heedlessly run into an apparent danger. Hestonville P. Ry. Co. v. Connell, 88 Pa. St. 520; Woodbridge v. Delaware, L. & W. Ry. Co., 16 Wkly. Notes Cas. 55; Kay v. Pennsylvania R. Co., 65 Pa. St. 269; Fitzgerald v. St. Paul, M. & M. Ry. Co., 8 Amer. & Eng. R. Cas. 310; S. C. 13 N. W. Rep. 168.

Benson & Brainerd, for defendant in error.

This driver did not perform his duty. North Pa. R. Co. v. Heileman, 49 Pa. St. 60; Mangam v. Brooklyn R. Co., 38 N. Y. 455; Crissey v. Hestonville,

6 A. 270

M. & F. P. R. Co., 75 Pa. St. 83. A child of four cannot be charged with contributory negligence. Hestonville P. Ry. Co. v. Connell, 88 Pa. St. 520; Pittsburg, A. & M. P Ry. Co. v. Caldwell, 74 Pa. St. 421; Kay v. Pennsylvania R. Co., 65 Pa. St. 269; Rauch v. Lloyd, 31 Pa. St. 358.

TRUNKEY, J. At the date of the plaintiff's injury she was nearly four years of age. She was on her way to a neighboring store, having been sent alone by her parents. The injury was inflicted on the north walk of a street crossing, where people were accustomed to cross on foot. There is no evidence of special hazard at that crossing occasioned by large amount of travel or otherwise. The driver had stopped his car at the south walk, and there was little time or distance for his team to gain much speed. He first saw the child under the tongue when the horses jumped. He had given his attention to passengers, between the south and north walks. Other persons saw the child in danger, and endeavored to get him to stop. "At the time of the injury to this child the driver was charged, not only with driving and managing the horses, but also collecting the fare." No change box was in the car. Upon the driver rested the entire duty of collecting fares, caring for the convenience of passengers, and proper driving. His stop at the south walk had no tendency to warn the child, or anybody else, to keep off the north walk or be run over. Had he kept lookout while between the...