Goldberg v. Philadelphia Rapid Transit Co.

• Decision Date: 06 January 1930
• Docket Number: 323-6
• Citation: 299 Pa. 79,149 A. 104
• Parties: Goldberg et al. v. Philadelphia Rapid Transit Co., Appellant
• Court: Pennsylvania Supreme Court

149 A. 104

299 Pa. 79

Goldberg et al. v. Philadelphia Rapid Transit Co., Appellant

No. 323-6

Supreme Court of Pennsylvania

January 6, 1930

Argued December 4, 1929

Appeals, Nos. 323-6, Jan. T., 1929, by defendant, from judgment of C.P. No. 5, Phila. Co., March T., 1927, No. 3912 on verdict for plaintiffs, in case of Leonard Goldberg by his parents and next friends, Joseph A. Goldberg and Jeanette Goldberg, and Joseph A. Goldberg, and Jeanette Goldberg, in their own rights, v. Philadelphia Rapid Transit Co. Affirmed.

Trespass for injuries to minor child. Before McCANN, J., specially presiding.

The opinion of the Supreme Court states the facts.

Verdict and judgment for parents for $6,000, and for minor $10,000. Defendant appealed.

Errors assigned were various rulings and instructions, quoting record seriatim.

The judgments are affirmed.

Marshall A. Coyne, with him J. J. K. Caskie, for appellant. -- The case should not have been submitted to the jury: Conklin v. Traction Co., 266 Pa. 164.

William A. Gray, for appellees. -- The case was for the jury as to the minor plaintiff and motion for judgment n.o.v. was properly overruled: Melcher v. Stengel, 288 Pa. 522; Conklin v. Traction Co., 266 Pa. 164; Slavin v. Ry., 47 Pa.Super. 454; Drenberg v. Ry. & Light Co., 55 Pa.Super. 218; Hagos v. Transit & Light Co., 66 Pa.Super. 422; Tatarewicz v. Traction Co., 220 Pa. 560.

The case was for the jury as to the parents and motion for judgment n.o.v. was properly overruled: Dattola v. Burt Bros., 288 Pa. 134; Cover v. Transit Co., 290 Pa. 551; Karahuta v. Traction Co., 6 Pa. Superior Ct. 319; Cramer v. Aluminum Co., 239 Pa. 120.

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

OPINION

MR. JUSTICE WALLING:

Tasker Street, extending through Philadelphia, in an easterly and westerly direction, is crossed at right angles by Sixth Street and, approximately four hundred feet to the east, by Fifth Street. The sidewalks on Tasker Street are twelve feet wide and the cartway is of the width of twenty-six feet. In the center of the latter, the Philadelphia Rapid Transit Company, defendant, has a single track railway, leaving a space on either side of ten feet and four inches between the curb and the rail. On February 11, 1927, the plaintiffs' residence was on the northeast corner of Sixth and Tasker Streets, the kitchen being at the rear end of the house, facing the latter. The day was pleasant, and about noon the plaintiff, Mrs. Goldberg, put wraps on her son, Leonard, the minor plaintiff, then five and one-half years old, and let him go out on the kitchen steps, telling the maid, who was in the kitchen, to keep an eye on him. Then Mrs. Goldberg went upstairs to look after her work. Soon after, a blind beggar, who was well known in the neighborhood, came along on the south walk of Tasker Street, and Leonard, seeing him, ran across the street to put some pennies in his cup. This done, Leonard started to return home and just before clearing the track was struck and seriously injured by a westbound trolley car. This suit brought on account thereof, resulted in verdicts and judgments for the plaintiffs and the defendant has appealed.

In view of the verdicts, we must assume the facts as plaintiffs' proofs tended to establish them. So doing, we find no reversible error, for it appears that the trolley car came along at the speed of about eighteen miles an hour, that the street, including the track and the cartway to the south of it, was clear of obstructions, that the boy was in plain sight of the motorman from the time he left the curb until he was struck, that there was no other traffic moving in the street or anything to distract the motorman's attention. The boy walked about fifteen feet from the curb to where he was struck. The testimony for plaintiffs is not in harmony as to just how far the trolley car ran during that time. Some of plaintiffs' witnesses said the car was thirty feet away when the boy left the curb, one, somewhat confused, said two hundred feet and another, three-fourths of the block, which would be more than that. As the testimony for the defense, including that of the motorman, was that he could stop the car within six feet, the exact distance it moved while the boy was in the cartway was not a vital matter. It is beyond dispute that had the motorman seen the boy while he was going from the curb to the track, the accident could have been averted. The motorman's testimony was that a milk wagon headed west stood in the south side of the street and hid the boy until he darted onto the track immediately in front of the trolley car, which was stopped within six feet. If so, it was a darting out case and there could be no recovery. Other evidence, however, denied the presence of the milk wagon, and its driver, called in rebuttal by plaintiffs, testified that it had turned south in Sixth Street before the accident. Whether the view was obstructed was a question of fact for the jury.

It is the duty of a motorman as his car moves forward to keep a constant watch of the cartway and track before him. To run down a small child in an unobstructed street in broad daylight is evidence of negligence, unless the child suddenly darts out into the track of the car. If the motorman failed to see the child, who was approaching the track in plain view, he was negligent, and if he saw the child in time to stop and failed to do so, he was equally negligent. As stated in Schnur v. Citizens' Traction Co., 153 Pa. 29, 31: "Very much depends upon the care of the gripman [speaking of cable cars]. He should always be on the alert, to avoid danger, and his attention never should be diverted from his duties. He should keep his eye constantly on the track before him." And "It is the duty of a motorman to keep a constant lookout ahead, and to have such control of his car as to avoid dangers ordinarily incident to its operation, and also to avoid such unusual and unexpected danger as he saw in time to avoid": Tatarewicz v. United Traction Co., 220 Pa. 560, 563; and see Jones v. Traction Co., 201 Pa. 344; Conner v. Pittsburgh Rys. Co., 216 Pa. 609; Evers et al. v. Phila. Traction Co., 176 Pa. 376; Slavin v. N. Cambria St. Ry. Co., 47 Pa.Super. 454.

A child of such tender age, of course, could not be charged with contributory negligence. As to the parents, the case is different. It was their duty to exercise reasonable care to protect the child and keep it from danger. The fact, however that the child was found momentarily in the cartway of the street did not, as matter of law, convict the parents of negligence: Crane et al. v. Sadler, 96 Pa.Super. 217; ...