Iaquinta v. Citizens' Traction Co.

• Decision Date: 07 January 1895
• Docket Number: 297
• Parties: Dominica Iaquinta v. Citizens' Traction Co., Appellant
• Court: Pennsylvania Supreme Court

30 A. 1131

166 Pa. 63

Dominica Iaquinta v. Citizens' Traction Co., Appellant

No. 297

Supreme Court of Pennsylvania

January 7, 1895

Argued November 9, 1894

Appeal, No. 297, Oct. T., 1894, by defendant, from judgment of C.P. No. 3, Allegheny Co., Aug. T., 1893, No. 299, on verdict for plaintiff. Affirmed.

Trespass for death of plaintiff's son. Before McCLUNG, J.

At the trial, it appeared that plaintiff's son, Louis, a boy between twelve and thirteen years of age, was killed by one of plaintiff's cars on May 31, 1893. The evidence for plaintiff tended to show that at the time of the accident defendant operated a double line of electric railway on Frankstown avenue; and that workmen were laying a gas pipe on the side of the avenue between Torrens street and Findlay street. A ditch had been opened between the curb and track. The ditch itself was about two feet wide, and the space between the ditch and the first rail of the track was about two and one half feet wide. Plaintiff's son, according to plaintiff's proofs, jumped over the ditch, and while standing in the space between the ditch and track and looking down into the ditch, was struck by a car running at an unusually high rate of speed without any bell being rung.

Defendant offered testimony which tended to show that the boy ran on the pavement for some distance parallel to the track and then jumped the ditch and ran in front of the car and was immediately run over. The evidence for defendant also tended to show that the motorman was running his car at the usual rate of speed, and that he sounded his gong repeatedly as he approached Torrens street. The accident occurred apparently just beyond the crossing of Torrens street.

Defendant's request for binding instruction was refused.

Verdict and judgment for plaintiff for $500.

Error assigned was above instruction, quoting it.

Judgment affirmed.

George C. Wilson, Wm. D. Evans with him, for appellant. -- If instead of a boy, the person injured had been an adult and the injuries had been sustained under the circumstances given by plaintiff's witnesses as the story of this occurrence, no recovery could have been had: Buzby v. Traction Co., 126 Pa. 562; Thomas v. Ry., 132 Pa. 504; Carson v. Ry., 147 Pa. 224; Ehrisman v. Ry., 150 Pa. 180; Winter v. Ry., 153 Pa. 26.

The boy was of sufficient age to be guilty of contributory negligence: Masser v. R.R., 68 Iowa 602; Messenger v. Dennie, 141 Mass. 335; Ecliff v. R.R., 64 Mich. 196; Ludwig v. Pillsbury, 35 Minn. 256; Twist v. R.R., 4 Ry. & Corp. 516; Achtenhagen v. Watertown, 18 Wis. 331; Brown v. Ry., 58 Me. 384; Wendell v. R.R., 91 N.Y. 420; Honor v. Albrighton, 93 Pa. 475; Moore v. R.R., 99 Pa. 301; Miller v. R.R., 6 Cent. R. 607; Fisher v. Ferry Co., 124 Pa. 154.

Plaintiff's case does not gather any strength from the testimony tending to show that the deceased jumped over the ditch and stood for a minute or a minute and a half on or dangerously near the track. The presumption is such persons will step off the track: Moore v. R.R., 108 Pa. 349; R.R. v. Adams, 89 Pa. 31.

Though an infant of tender years may recover for an injury partly caused by his own imprudent act, the father cannot: Glassey v. Ry., 57 Pa. 172; Pa. Co. v. James, 81 Pa. 194; Smith v. Ry., 92 Pa. 450; Ry. v. Pearson, 72 Pa. 169; R.R. v. Long, 75 Pa. 257.

Parents who permit their children to trespass upon a railroad track are guilty of contributory negligence, and the fact that the trespass is without the knowledge of the parents is immaterial: Cauley v. Ry., 95 Pa. 398.

A. B. Reid, A. V. D. Watterson with him, for appellee. -- The boy was too young to be guilty of contributory negligence: Ry. v. Gallagher, 108 Pa. 528; Nagle v. R.R., 88 Pa. 35; Ry. v. Steinhart, 2 Penny. 358; Smith v. Ry., 92 Pa. 453; Taylor v. Canal Co., 113 Pa. 162; Strawbridge v. Bradford, 128 Pa. 200; Kehler v. Schwenk, 144 Pa. 348.

Between the ages of seven or eight and fourteen, it is for the jury, not the court, to say whether the child was guilty of contributory negligence in a given case: Ry. v. Hassard, 75 Pa. 367; R.R. v. Kelley, 31 Pa. 372; Crissey v. Ry., 75 Pa. 83; R.R. v. Lewis, 79 Pa. 33; Biddle v. Ry., 133 Pa. 000; Redfield on Negligence, 72; Vannatta v. R.R., 154 Pa. 262; R.R. v. Spearen, 47 Pa. 300.

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

OPINION

MR. CHIEF JUSTICE STERRETT:

Refusal of the court to direct a verdict for defendant, and thus withdraw the case from the jury, is the only error assigned. In view of the conflicting testimony, bearing on the questions of defendant's negligence and the alleged contributory negligence of the deceased boy, this could not have been done without manifest usurpation of authority and invasion of the province of the jury. If the testimony relied on by the plaintiff was believed, there could be no doubt as to the gross negligence of the defendant, in recklessly running its car at a dangerously high rate...