Hestonville Passenger Railway Co. v. Connell

• Decision Date: 17 February 1879
• Citation: 88 Pa. 520
• Parties: Hestonville Passenger Railway Co. v. Connell.
• Court: Pennsylvania Supreme Court

88 Pa. 520

Hestonville Passenger Railway Co. v. Connell.

Supreme Court of Pennsylvania.

February 17, 1879

January 31, 1879

1. While negligence cannot be imputed to a child of the age of six years and nine months, nevertheless it may be assumed that a child old enough to be trusted to run at large, has discretion enough to avoid ordinary danger, and that persons who have business on the street may reasonably conclude that they are not to provide against possible damages that may result to such child by his own wilful trespass.

2. Where a child of such an age was injured by a street car, not from any defect in the car, nor any neglect in its management, but from the sudden and unexpected act of the child in attempting to mount the front platform of the car while the driver who was also conductor was on the rear platform and could not have foreseen or guarded against the act, the railroad company is not responsible therefor.

3. Under such circumstances there was prima facie no negligence in the want of a fender on the front of the car and the absence of the driver from the front platform.

Before MERCUR, GORDON, PAXSON, WOODWARD, TRUNKEY and STERRETT, JJ.

SHARSWOOD C. J., absent.

Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of July Term 1878, No. 147.

Case by William Connell, by his next friend and father, Patrick W Connell, against the Hestonville, Mantua and Fairmount Passenger Railway Co., for damages for injuries to plaintiff through the alleged negligence of defendants' servants.

The facts will be found stated in the opinion of this court.

At the trial, the defendants submitted the following points, which the court, Mitchell, J., refused:

1. The jury must, under the evidence, find for the defendants.

2. There is no sufficient evidence of negligence on the part of the defendants to enable the jury to find a verdict for the plaintiff.

3. If the jury find that the car was going at an ordinary rate of speed, and that the conductor went to the rear end of the car to put a boy off of the back platform, who was hanging on in a dangerous position, and that while there the plaintiff ran towards the front platform, and in trying to get on fell there is not sufficient evidence of negligence to entitle the plaintiff to recover.

In their charge, the court, inter alia, said:

" I leave it to you to determine, as a question of fact, whether the absence of a fender and driver on the front platform was, under the circumstances, negligence on the part of the defendants."

The verdict was for the plaintiff, for $2000.

The defendants took this writ, and assigned for error the refusal of the foregoing points and the portion of the charge noted.

Henry Hazlehurst and E. Spencer Miller, for plaintiffs in error.--Where the facts as to negligence are undisputed, the question is for the court and not for the jury: Hoag v. Railroad Co., 4 Norris 293. The liability of a carrier for the direct consequence of its negligence to one who is using a highway in common with itself, is entirely different from its liability to a passenger: Railroad Co. v. Goodman, 12 P. F. Smith 330; McCully v. Clarke, 4 Wright 407; Allen v. Willard, 7 P. F. Smith 374; Railroad Co. v. Heil, 5 W. N. C. 91; Stinson v. City, 42 Maine 248; Stackpole v. Healey, 16 Mass. 33; Waters v. Wing, 9 P. F. Smith 211; Bevans v. United States, 13 Wall. 56.

Doubtless, a much less degree of vigilance is required of a child, or could be reasonably expected of him, and, perhaps, where his fault merely co-operates with the actual negligence of a defendant to bring about the accident, he may be considered to a great extent excusable; but the class of cases into which the present one must fall, have decided that where " his own act directly brings the injury upon him, while the negligence of the defendant is only such as exposes the child to the possibility of injury, he cannot recover:" Sh. & Red. on Neg., § 49. Probably the rule is best stated by saying, that his duty is confined only to an exercise of the most ordinary care, and even then with reference to his " ability to foresee and avoid danger:" Railroad Co. v. Hassard, 25 P. F. Smith 377; Burke v. Railroad Co., 49 Barb. 529; Railroad Co. v. Spearen, 11 Wright 302; Hatfield v. Roper, 21 Wend. 620; Brown v. Railroad Co., 58 Maine 384; Skelton v. Railway Co., 2 L. R. C. P. 631; Railroad Co. v. McElwee, 17 P. F. Smith 311; Railroad Co. v. Rowan, 16 Id. 393; Pennsylvania Canal Co. v. Bentley, Id. 30.

J. Carroll McCaffrey and J. J. Murphy, for defendant in error.--A child is responsible only for such a degree of prudence as is consistent with a person of his years: Railway Co. v. Caldwell, 24 P. F. Smith 424; Pennsylvania Railroad Co. v. Kelly, 7 Casey 372; Smith v. O'Connor, 12 Wright 218; Rauch v. Hill, 7 Casey 358; Crissey v. Hestonville Railroad Co., 25 P. F. Smith 86; N. P. Railroad Co. v. Mahoney, 7 Id. 187; Philadelphia City Passenger Railroad Co. v. Hassard, 25 Id. 367; Reading Railroad Co. v. Spearen, 11 Wright 300.

Where the danger was open and exposed on the public highway, and was not guarded as it should have been, by either the presence of a fender or of a driver at the front of the car, it cannot be seriously contended that the plaintiffs in error were managing their car with due care and caution: Railway Co. v. Hassard, supra. Being a trespasser does not defeat the right of recovery: Burge v. Gardiner, 19 Conn. 507.

This case is ruled by Hydraulic Works Co. v. Orr, 2 Norris 332.

Mr Justice GORDON delivered the opinion of the court, February 17th 1879.

As we gather from the evidence and from the statements of counsel on the 3d day of March 1877 at about 11 o'clock, A. M., as the car of the defendant below, was passing along Lancaster avenue, between Fifty and Fifty-first streets, William Connell, the...