Jones v. Harris

• Decision Date: 21 July 1898
• Docket Number: 152
• Parties: Daniel K. Jones, father and next friend of Margaret Jones, a minor, v. Joseph S. Harris, Edward M. Paxson and John Lowber Welsh, Receivers of the Philadelphia & Reading Railroad Company, Appellants
• Court: Pennsylvania Supreme Court

40 A. 791

186 Pa. 469

Daniel K. Jones, father and next friend of Margaret Jones, a minor, v. Joseph S. Harris, Edward M. Paxson and John Lowber Welsh, Receivers of the Philadelphia & Reading Railroad Company, Appellants

No. 152

Supreme Court of Pennsylvania

July 21, 1898

Argued January 13, 1898

Appeal No. 152, Jan. T., 1897, by defendants, from judgment of C.P No. 2, Phila. Co., Dec. T., 1895, No. 577, on verdict for plaintiff. Affirmed. MITCHELL and GREEN, JJ., dissent.

Trespass for personal injuries by a child seven years old. Before SULZBERGER, J.

The facts appear by the opinion of the Supreme Court.

Defendants' points and the answers thereto among others were as follows:

2. It being conceded that the gates were down, then the company had done their entire duty, and the mere fact that the person injured was a child, and not an adult, does not entitle her to recover. Answer: I decline that point in the way in which it is put. [1]

3. The duty of the company was to give notice of an approaching train. The putting down of the gates is a sufficient warning to the whole public, and the fact that the plaintiff was a child did not impose any additional duty upon the defendants. It being conceded that the gate was down the plaintiff cannot recover. Answer: I decline that point. [2]

4. If the jury believe that the flagman saw the child inside the gate and warned her to stay back he performed his whole duty and she cannot recover. Answer: That would be true if he gave her the warning that was proper under the circumstances for a man of his age and in his position to give to a child in the circumstances in which it was placed. [3]

5. Under all the evidence in this case your verdict should be for the defendants. Answer: I decline that point. [4]

Verdict and judgment for plaintiff for $2,135. Defendants appealed.

Errors assigned (1-4) above instructions, quoting them; (6, 7) refusal of the court to order the stenographer to file notes of charge, no exception having been taken before a verdict.

The sixth and seventh assignments are to the refusal of the court, to at once, on request of defendants' counsel order a certified copy of stenographer's notes of testimony and charge to be filed. We have so fully stated our views on this subject in Curtis v. Winston & Co., opinion handed down this day, that further discussion of these assignments is unnecessary. All the assignments of error are overruled and the judgment is affirmed.

Gavin W. Hart, for appellants. -- The flagman by the action of this child was called upon to perform a duty suddenly thrust upon him, and of which he had no notice. He had at the utmost seven seconds in which to know of it and to perform it, and yet with all the terror that must affect any one who sees a human being going into impending death he is charged with negligence because he was not as cool and collected as if nothing was about to happen: Werner v. R.R., 89 Pa. 59; Aiken v. R.R., 130 Pa. 380; R.R. v. Kelley, 102 Pa. 115; Brown v. French, 104 Pa. 604; Sekerak v. Jutte, 153 Pa. 117; Floyd v. R.R., 162 Pa. 29; Cleary v. R.R., 140 Pa. 19; Sheehan v. R.R., 166 Pa. 356.

J. M. Vanderslice, for appellee, cited McCloskey v. Ice Co., 174 Pa. 34.

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

OPINION

MR. JUSTICE DEAN:

The defendants' railroad with two tracks crosses at grade Ninth street in the city of Philadelphia, where that street is intersected by Poplar street. There are guard gates to protect the public from the danger of crossing when trains are approaching. A flagman is stationed there to operate the gates and flag trains. On September 30, 1895, the flagman lowered the gates while a train passed out on the west bound track; as the train was passing, Margaret Jones, a child about seven years of age, came from Poplar street to the crossing. The gates do not extend over the sidewalk, and although down, being only a single top bar, she could easily walk under them. Whether she came by the sidewalk or under the gate is not clear, but she went up and stood beside the flagman; when the train passed, she walked with him to the east track; he stopped, but she kept on as if to cross it; he called her back, and she returned, and stood near, facing him; while thus situated, an incoming train struck and seriously injured her. The father, averring negligence brought this suit. We do not undertake to say that the facts were, beyond all doubt, proved as we have stated them, for there were inconsistencies in the statements of the witnesses; but, there was sufficient evidence to warrant the jury in finding them to be the facts, and by the verdict, so far as concerns us, they are established. The court below, in a charge so clear that it could not fail to be understood, submitted the question of negligence on the part of the flagman to the jury, instructing them that, "negligence is a failure to do what an ordinarily prudent person would have done under the circumstances, or a doing of that which an ordinarily prudent person would not have done." The jury found for plaintiff, and we have this appeal by defendants, whose counsel prefer seven assignments of error. The first is, "The learned court erred in its entire charge to the jury." So far as we can discover, this sweeping charge of error is intended to allege that the court below was mistaken as to the facts, and consequently misstated them to the jury. This assignment is not sustained by the charge or the evidence. After announcing in correct terms the definition of negligence, instead of leaving the jury of laymen to guess at its meaning, or flounder in efforts to apply it, the court further said: "In my judgment, this definition of negligence has behind it, and necessarily involves, the definition of duty as being also shifting according to the circumstances. I think that a flagman who has a child of tender years standing alongside of him owes it to that child to assume that it will not act with that discretion which an adult would exercise, and therefore his warning to the child, and his notice to the child, must be different from that which he would give to an adult, just in proportion as more is required according to the circumstances, if you find that more is required. I say to you, therefore, that it is for the jury to define what is the proper thing for a flagman to do under the circumstances, but before you come to charge the flagman with any negligence, it is your duty to look at the circumstances." Certainly, this was correct to a demonstration. The lowered gate was sufficient warning to an adult; the flagman owed him no further legal duty; but as to a little child, this was neither a physical barrier nor a warning to the senses; able to pass under the gate, incapable of comprehending the danger indicated by its being lowered, it was exposed to all the peril of the incoming train, with no protector except the flagman. Certainly, the measure of duty shifted according to the change of circumstances. The lowering of the gate, so far as concerns the consequences to his employer, was the performance of his duty to the adult, because a disregard of the plain warning involved the adult in the consequences of his own negligence; but, if, in spite of the warning, a reckless or ignorant man had attempted to cross those tracks in view of a coming train, moral obligation and the dictates of humanity, even though there was no legal duty, should have prompted him to further effort to prevent death or mutilation. But in case of a child, there could be no recklessness or ignorance on its part which would relieve him from the legal duty of care according to that circumstance. Whether he exercised such care, was for the jury. But, to leave no possible room for misunderstanding of the law on part of the jury, the court proceeds further, thus: "As I said, an appeal to the judgment of a child must always take the risk of the child's misunderstanding it, and the child in this case did misunderstand it, and that without legal consequence to the child's claim. Now, what were the circumstances? Having misunderstood the notice, the child passed the bar, and then it stood alongside of the flagman. The evidence on that point is furnished, as I recollect it, by two witnesses, one of them Mr. Eckes, and the other Mr. Fisher. You heard the testimony of Mr. Eckes and you heard the testimony of Mr. Fisher. You saw their manner on the stand, and it is for you to determine, first, whether they or either of them were in such a position of proximity and opportunity of vision as enabled them accurately to...