Evers v. Philadelphia Traction Co.

• Decision Date: 15 July 1896
• Docket Number: 231
• Citation: 35 A. 140,176 Pa. 376
• Parties: Michael Evers and Catharine Evers v. Philadelphia Traction Company, Appellant
• Court: Pennsylvania Supreme Court

35 A. 140

176 Pa. 376

Michael Evers and Catharine Evers v. Philadelphia Traction Company, Appellant

No. 231

Supreme Court of Pennsylvania

July 15, 1896

Argued April 10, 1896

Appeal, No. 231, Jan. T., 1896, by defendant, from judgment of C.P. No. 2, Phila. Co., Sept. T., 1895, No. 599, on verdict for plaintiffs. Affirmed.

Trespass by parents for death of child caused by negligence of defendant. Before PENNYPACKER, J.

The facts sufficiently appear by the opinion of the Supreme Court.

The defendant presented a point: (3) Under all the evidence in this case the verdict must be for the defendant. Refused.

Verdict for plaintiffs for $2,500, reduced to $1,500, and judgment thereon.

Error assigned was refusal of above point.

The assignment of error is overruled, and judgment affirmed.

J Howard Gendell, with him T. L. Vanderslice, for appellant. -- The mere fact of the incapacity of the child neither creates nor shields their liability: Johnson v. Reading City Pass. Ry. Co., 160 Pa. 647.

This principle has been frequently applied where a child or an animal has suddenly appeared on or close to the track Chilton v. Traction Co., 152 Pa. 425; Flanagan v. Ry. Co., 163 Pa. 102; Traction Co. v. Bernheimer, 125 Pa. 615; R.R. Co. v. Spearen, 47 Pa. 300; Fisher v. R.R. Co., 126 Pa. 293. Even if the speed was excessive it would not subject the defendant to damages unless it was shown that it produced the accident: Goshorn v. Smith, 92 Pa. 435. Allowing a young child upon the streets of a city unprotected is presumptive evidence that he was exposed either voluntarily or negligently by his parents: Glassey v. Ry. Co., 57 Pa. 172; Smith v. Ry. Co., 92 Pa. 450; Westerberg v. R.R. Co., 142 Pa. 470; Cauley v. Ry. Co., 95 Pa. 398; Johnson v. Ry. Co., 160 Pa. 647. In all the cases but one the child slipped unobserved into the street when it was supposed to be safe in the house: R.R. Co. v. Long, 75 Pa. 257; Woodbridge v. R.R. Co., 105 Pa. 460; Dunseath v. Traction Co., 161 Pa. 124; Lederman v. R.R. Co., 165 Pa. 118.

In none of the cases cited was the father at home.

Wendell P. Bowman, for appellees. -- In every one of the cases relied on by appellant the facts are distinctively different from those given in evidence in the present case. The facts in this case are almostly precisely the same as in Ry. Co. v. Pearson, 72 Pa. 169. In all the cases where the evidence was that the parents had not been in the habit of allowing children of tender age to run at large in the business streets of a big city, and that the children were not entirely alone and neglected by their parents, the question of negligence was left to the jury under proper instructions from the court: R.R. Co. v. Long, 75 Pa. 257; R.R. v. Lewis, 79 Pa. 33; Dunseath v. Traction Co., 161 Pa. 124; Lederman v. R.R., 165 Pa. 118.

Before STERRETT, C.J., GREEN, WILLIAMS, DEAN and FELL, JJ.

OPINION

MR. JUSTICE DEAN:

On Sunday forenoon, the 17th of September, 1893, Michael Evers, four and one half years old, the son of plaintiffs, was run over and killed by defendant's street car, on Front street between Bainbridge and Catherine in the city of Philadelphia. The plaintiffs lived at the corner of Meade and Swanson streets; the latter being parallel with Front and near to it; Meade is a narrow street or alley, running from Front to the river. The family of plaintiffs was made up of the parents and eight children. The mother had washed and dressed Michael, the deceased child, and then had permitted him to go with his elder brother Thomas, to a coal box on the lower side of Meade street, while she proceeded to wash and dress another of her children; about the time she had finished this one, two other of her children, girls, returned from church; on inquiry of them, she was told the two boys were still by the coal box; she then directed one of these to tell the boys to come home; one of the sisters immediately did as directed by the mother; the elder boy obeyed, but the younger refused; the sister, on reporting to the mother, was immediately sent to bring him home; in this interval, however, the boy had left the coal box, and crossed over to the west side of Front street, a half square distant, and then started to run across again to the east side, when he was run over by defendant's car. The father peddled brooms with a horse and wagon, and at times manufactured them himself in the house where he lived; two of his daughters had employment and earned a living, but the family was in moderate circumstances. The parents brought suit against the defendant for damages, alleging, the death was caused by its negligence in running the car at an unusual speed; further, that when the child started from the west side of Front street to run across the track to the east side, he was in plain view of the motorman for a distance of sixty feet; that, although witnesses on the sidewalk saw the danger and screamed to him, the motorman made no effort to stop the car, and appeared to be looking westward in another direction. There was much negative evidence that no warning of the approaching car was given. The motorman himself admitted he was a new hand on city streets, having been in employ of defendant only four days, and that this was his first trip without an instructor.

At the trial, the court below submitted the evidence to the jury to find: 1. Whether defendant was negligent. 2. Whether the parents were guilty of contributory negligence in not exercising proper watchfulness over their child.

The verdict was for plaintiffs, and we have this appeal by defendant, in which there is the single assignment of error, that the court should have peremptorily directed a verdict for defendant on two grounds: 1. Because there was no evidence of negligence on part of defendant, and 2. Because the evidence necessarily warrants no other inference than that of negligence on part of the parents.

As to the first proposition, it is based on the incorrect assumption that there was no evidence tending to show the motorman failed to fully perform his duty.

Eight witnesses testified, this child, in broad day, started from the curb, which is about seven feet from the rail, to cross the street when the car was fifty or sixty feet distant. Eugene O'Neill, an intelligent witness, a foreman of...