Erie City Passenger Railway Co. v. Schuster

• Decision Date: 04 October 1886
• Docket Number: 116
• Citation: 6 A. 269,113 Pa. 412
• Parties: Erie City Passenger Railway Co. v. Schuster
• Court: Pennsylvania Supreme Court

6 A. 269

113 Pa. 412

Erie City Passenger Railway Co. v. Schuster

No. 116

Supreme Court of Pennsylvania

October 4, 1886

Argued April 27, 1886

ERROR to the Court of Common Pleas of Erie county: Of July Term 1885, No. 116.

This was an action on the case, brought by Minnie Schuster by her next friend, Isaac Oppenheimer, against The Erie City Passenger Railway Company to recover damages sustained by her by being run over by a car of the defendant through the alleged negligence of the defendant's driver. The defendant pleaded not guilty.

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

The Erie City Passenger Railway Company is a corporation created and existing by and under the laws of Pennsylvania, and vested with the right to occupy with its tracks among others State street in the city of Erie, and to run its cars thereon for the transportation of passengers. The cars are what are known as "bob-tail cars" and are run without a conductor.

On the 15th or 16th of June, 1873, one of its cars was passing north along State street with two passengers. At the south crossing on State street the car was stopped to let off a passenger for Fourth street. When the passenger got off the driver started up his horses and just as he had got started the remaining passenger spoke to him, saying she wanted to get off at Third street, the next street north or towards the lake. He turned his head for a moment to get her request, and as he again turned towards his horses he saw a child under the feet of the horses. He stopped then as soon as he possibly could, but before the car could be stopped the child passed under the car and was injured.

The plaintiff was at that time less than four years old and had been sent by its mother or father on an errand that required her to cross the street.

The driver saw children on the sidewalk as he approached the north crossing, but did not see anyone in the street, nor anyone attempting to cross the street, until after the horses struck the plaintiff.

He had been driving for about five years and was a sober, careful driver.

The child was crossing the street at a regular crossing when struck.

Fourth street is sixty feet wide from side to side, twelve feet on each side are taken for sidewalk, leaving carriage way thirty-six feet wide.

The crossings are near the outer edge of the sidewalk, leaving a space of about forty feet between them where they cross State street.

A car stopping at the south crossing to let off a passenger would put the horses' heads about half way between the crossings, so that they could get but little motion after starting until their heads would be on the crossing.

The defendants presented, inter alia, the following points

The defendants presented, inter alia, the follwing points for charge:

3. That even if the driver did see the child so close that it might reach the horses or car before they passed; it was not necessarily negligence of the driver not to stop. He was not bound to stop if it seemed improbable to him that the child would reach the horses or car, and he had a right to presume that a child of her age would not negligently run into an apparent danger. Answer: It is a question for the jury under all the circumstances of the case as disclosed by the evidence, what would and what would not constitute negligence. It is for the jury to say whether under the facts shown there was or was not negligence. The point is refused as being for the jury, and not for the Court. (First assignment of error.)

7. If the jury believe from the evidence that the plaintiff was allowed to play in the street unattended, or was sent into the street by its parents on an errand that required her to cross the street, such an act was such negligence as will prevent a recovery by the plaintiff in this case. In such a case the negligence of the parents will be imputed to the plaintiff. Ans. Refused. (Second assignment of error.)

8. That under all the evidence in the case the plaintiff is not entitled to recover. Ans. This is also refused. It is for the jury to say under all the evidence whether the plaintiff is entitled to recover or not. (Third assignment of error.)

Verdict for the plaintiff in the sum of $1,483 and judgment thereon whereupon the defendant took this writ, assigning for error the answer of the Court to the points as above indicated.

Judgment affirmed.

John P. Vincent, for plaintiff in error. -- The Court should have affirmed our third point: Hestonville Passenger Railway Co. v. Connell, 88 Pa. St., 520; Woodbridge v. D.L. & W.R.R. Co., 16 W.N.C., 55; Catawissa R. R. v. Armstrong, 52 Pa. St., 282.

The Court should have affirmed our seventh point. In Fitzgerald v. The St. Paul, Minneapolis & Manitoba R.R. Co., 8 Am. and Eng. Railroad Cases, 310, the Supreme Court of Minnesota say: "The majority of the Court adopt as sounder in principle and more equitable in practice the doctrine of these cases which hold that the consequences of negligence on the part of the parents or other person having charge or control of an infant non sui juris, and himself incapable of negligence as imputable to the infant; that the infant being non sui juris and having in law a keeper to whose discretion in the care of his person he is confided, the negligence of such custodian must, as regards third persons, be held in law the negligence of the infant," and the Court cites as sustaining this, viz.: Hathfield v. Ruper, 21 Ind. 15; Mangain v. Brooklyn City R.R. Co., 38 N.Y. 455; Bright v. Maldur & M.R.R. Co., 4 Allen, 283; Callahan v. Bean, 9 Allen, 401; Holly v. Boston Gas Light Co., 8 Gray, 123; Brown v. European & N.A.R.R. Co., 58 Maine, 384; La Fayette & Quincy R.R. Co. v. Huffman, 28 Ind. 287; Toledo, W. & W.R.R. Co. v. Gratchell, 88 Ill. 441; Meeks v. Southern Pacific R.R. Co., 52 Cal. 602.

Benson (Brainerd and Olds with him), for defendant in error. -- The defendant was guilty of negligence, as found by the jury, to whom the case was properly referred: Morgan v. Brooklyn R.R. Co., 38 N.Y. 455; North Penn. R.R. v. Heilman, 13 Wr., 60; Crissey v. Hattonville, Manitau & Fairmount R.R. Co., 25 P.F.S. 83.

The defendant's seventh point is wholly unsustainable. This Court over and over again has decided that a child of the age of five years cannot be charged with contributory negligence. This is a sound rule, founded on humanity and reason, and will stand the test of ages: Hestonville Passenger Railway Co. v. Connell, 7 Norris, 520; Pittsburgh, Allegheny & Manchester Railway Company v. Caldwell, 24 P.F.S. 421; Kay v. Pennsylvania Railroad Company, 15 P.F.S. 260; Rauch v. Lloyd & Hill, 7 Casey, 358.

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

OPINION

Mr. Justice TRUNKEY.

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...