Nagle v. Allegheny Valley Railroad Co.

• Decision Date: 06 January 1879
• Parties: Nagle <I>versus</I> Allegheny Valley Railroad Company.
• Court: Pennsylvania Supreme Court

88 Pa. 35

Nagle versus Allegheny Valley Railroad Company.

Supreme Court of Pennsylvania.

November 7, 1878.

January 6, 1879.

November 7th 1878.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and TRUNKEY, JJ. WOODWARD, J., absent

Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1878, No. 6.

Moore & Milligan, for plaintiff in error.—The immediate and direct cause of the boy's death was the fact that the engine was running much faster than the law allowed. It is not an answer to say that the boy's rashness was the cause. The question of contributory negligence is to be determined by reference to the age and intelligence of the person injured, and the circumstances under which the injury was sustained; and under this principle the plaintiff was clearly entitled to recover: Pennsylvania Railroad Co. v. Kelly, 7 Casey 377; Rauch v. Lloyd & Hill, Id. 370; Oakland Railway Co. v. Fielding, 12 Wright 320; Crissey v. Hestonville Railway Co., 25 P. F. Smith 83; P. & R. Railroad Co. v. Long, Id. 257; Philadelphia City Passenger Railway Co. v. Hassard, Id. 367.

Hampton & Dalzell, for defendant in error.—While it cannot be contended that the engineer could have done aught to avoid the accident, the boy jumping suddenly, as he did, right under the engine, the startling position is taken that the rate of speed was the proximate cause of the injury, because if the engine had been going more slowly the boy would have been over the track before he could have been caught. But the immediate cause of the injury was the boy's own recklessness in jumping on a railroad track over which he knew trains were constantly passing, without stopping to look or listen, and it is not the remote negligence of the company we must look to, but the proximate — that is, the conduct of the engineer on the engine at the time of the injury: Philadelphia and Reading Railroad Co. v. Spearen, 11 Wright 301; Morrison v. Davis, 8 Harris 171; Shultz v. Pennsylvania Railroad Co., 6 W. N. C. 69.

Mr. Justice PAXSON delivered the opinion of the court, January 6th 1879.

It was conceded upon the argument that if the deceased boy, Jacob Nagle, had been an adult, the defendant corporation would not have been responsible for his death, for the reason that it was the result of his own rashness in attempting to cross the track immediately in front of the locomotive. At the time of the unfortunate accident, which resulted in his death, he was employed in the steel works of Messrs. Reese, Graff & Woods, on Thirty-second street, in the city of Pittsburgh. The Allegheny Railroad Company had a lateral track for the accommodation of the steel company, from their main track along Thirty-second street to the Allegheny river. The buildings of the company were erected on both sides of Thirty-second street, and the lateral road ran within three or four feet of the buildings on the west side. Sliding-doors gave exit immediately on to the track. The boy was employed in the buildings on the east side of the street; and at the dinner hour had gone over to the buildings on the west side to cat his dinner with other boys of his acquaintance. Whilst sitting there, the whistle sounded for return to work, upon which he instantly started to run across to his own shop, and in doing so, passed out of the sliding-door to cross the track, was caught by a passing locomotive and instantly killed. At this point he could not see the engine, nor could the engineer see him. The mill had started up, and the noise of the machinery probably prevented his hearing the approach of the engine or the ringing of the bell, if in point of fact the bell was rung. The place where the accident occurred was a place of danger; an engine was liable to pass along by the sliding-door at any moment. What occurred, is told by Frederick Kiefer, a witness for the plaintiff, in a few words: "Just as I entered the mill I heard the whistle blow; after I entered the building, the whistle ceased blowing, and at that moment the boy rushed past me on to the railroad track, and the locomotive run over him." Upon this state of facts, the learned judge nonsuited the plaintiff, and subsequently refused to take the nonsuit off, which is assigned for error here.

It is undoubtedly true that negligence cannot be imputed to one who has not sufficient capacity or discretion to understand the danger, and to use the proper means to guard against it. Thus, it has been repeatedly held, that when an injury has been inflicted upon a child of tender years, by negligence on the part of corporations or individuals, the incapacity of the child to know the danger and avoid it, shields it from responsibility. It is sufficient for present purposes, to cite Rauch v. Lloyd, 7 Casey 370; Smith v. O'Connor, 12 Wright 222; North Penn. Railroad Co. v. Mahoney, 7 P. F. Smith 187; Kay v. Pennsylvania Railroad Co., 15 Id. 276; Railway Co. v. Caldwell, 24 Id. 421; Same v. Hazzard, 25 Id. 367; Same v. Lewis, 29 Id. 33. It was strongly urged that the case in hand falls within the principle and authorities above cited, and that at least the case should have gone to the jury upon the question of the concurring negligence of the boy, in connection with his age and the surrounding circumstances; that it was error for the court to declare the responsibility of the boy for his admitted negligence.

It is the province of the jury to settle controverted questions of fact. Upon an...