P. A. & M. Railway Co. v. Pearson

• Decision Date: 21 October 1872
• Parties: The Pittsburg, Allegheny and Manchester Railway Co. <I>versus</I> Pearson and Wife.
• Court: Pennsylvania Supreme Court

72 Pa. 169

The Pittsburg, Allegheny and Manchester Railway Co. versus Pearson and Wife.

Supreme Court of Pennsylvania.

October 17, 1872.

October 21, 1872.

October 17th 1872.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the District Court of Allegheny county: No. 150, to October and November Term 1871.

COPYRIGHT MATERIAL OMITTED

A. M. Brown, for plaintiffs in error, cited Pitts. and C. Railroad Co. v. McClurg, 6 P. F. Smith 294; Penna. Railroad Co. v. Goodman, 12 Id. 329; Glassey v. Hestonville Pass. Railway, 7 Id. 172; Penna. Railroad v. Ogier, 11 Casey 60; N. Penna. Railroad v. Heileman, 13 Wright 60; Callahan v. Bean, 9 Allen 401.

S. M. Raymond, for defendants in error.—The question of negligence was for the jury: Johnson v. Bruner, 15 P. F. Smith 269.

The opinion of the court was delivered, October 21st 1872, by SHARSWOOD, J.

The only question raised by these assignments of error, which it is deemed necessary to discuss is, whether under the evidence, the plaintiffs below — the parents of the child who was run over and killed by the railroad car of the defendants — were guilty of culpable negligence in permitting him to run abroad in the street without a competent protector. It was undoubtedly settled very properly in Glassey v. Hestonville Passenger Railway Co., 7 P. F. Smith 172, that if the parents permit a child of tender years to run at large without a protector in a city traversed constantly by cars and other vehicles, they fail in the performance of their duties, and are guilty of such negligence as precludes them from a recovery of damages for any injury resulting therefrom. If the case is barely such, the negligence is a conclusion of law, and ought not to be submitted to the determination of the jury. But in this case there was evidence that the child was not permitted to run at large without a protector, and it was a question for the jury whether the accident was to be attributed to the negligence of the parents. These parents were careful parents. A board at the door prevented the child from leaving the house of his own accord. When abroad he was in charge of an older sister between twelve and thirteen years of age. It so happened, however, that the board was removed temporarily for the purpose of scrubbing the floor. The child watched his opportunity and escaped. He was immediately missed and his brother at once sent after him. He returned and said that he was playing in the alley with Lizzie Orr, a little girl of the neighborhood, between seven and eight years old, who was in the habit of...