Parker v. Washington Electric St. Ry. Co.
| Decision Date | 04 January 1904 |
| Docket Number | 40 |
| Citation | 207 Pa. 438,56 A. 1001 |
| Parties | Parker v. Washington Electric Street Railway Company, Appellant (No. 1) |
| Court | Pennsylvania Supreme Court |
Argued October 21, 1903
Appeal, No. 40, Oct. T., 1903, by defendant, from judgment of C.P. Washington Co., Nov. T., 1902, No. 85, on verdict for plaintiff in case of Charles Parker by his next friend Margaret Parker, v. Washington Electric Street Railway Company. Affirmed.
Trespass to recover damages for personal injuries. Before McILVAINE P.J.
The facts are stated in the opinion of the Supreme Court.
Plaintiff presented this point:
If the jury find from the evidence that the motorman permitted the plaintiff, Charles Parker, to go on the front platform and to remain there while the car ran a distance of from 1,000 feet to half a mile, this was such negligence as will render the company liable for any injury which the boy sustained by reason of his being permitted to ride on the front platform. Answer: Affirmed. [1]
Defendant presented this point:
If the jury believe from the evidence that the plaintiff, Charles D. Parker, did actually know the danger in which he placed himself by attempting to alight from the front platform of a moving car and that knowing this fact he did attempt to jump off the car while in motion, he was then guilty of contributory negligence and cannot recover in this case and the verdict must be in favor of the defendant. Answer: Refused. We do not think that the evidence in this case is sufficient to rebut the presumption that a boy seven years and eight months old is not capable of being guilty of contributory negligence in a legal sense. [4]
Verdict and judgment for plaintiff for $4,000. Defendant appealed.
Errors assigned were (1, 4) above instructions, quoting them.
The judgment is affirmed.
John H. Murdoch, with him Edgar B. Murdoch, for appellant. -- Although the plaintiff, Charles D. Parker, was injured while a passenger on the defendant's car, there could not arise any presumption of negligence on the part of the defendant for the reason that the accident was not connected with the means of transportation: 1 Weimer Pa. R.R. Law, page 647; Thomas v. Phila. & Reading R.R. Co. 148 Pa. 180.
We contend that in view of the well known differences in capacity of children, it is competent to introduce evidence tending to show the extent or degree of knowledge and discretion, and when such facts appear in the case it is then the province of the jury to determine the question of negligence, which is always a question for the jury and not for the court: Nagle v. Allegheny Valley R.R. Co., 88 Pa. 35; Phila. City Pass. Ry. Co. v. Hassard, 75 Pa. 367; Sandford v. R.R. Co., 136 Pa. 84; strawbridge v. Bradford, 128 Pa. 200; Kehler v. Schwenk, 144 Pa. 348; West Phila. Pass Ry. Co. v. Gallagher, 108 Pa. 524.
What is negligence and whether negligence exists are usually questions of fact and for the determination of the jury. "Where both the duty and the extent of its performance are to be ascertained as facts, a jury alone can determine what is negligence and whether it has been proved: Phila., etc., Ry. Co. v. Hassard, 75 Pa. 377; McCully v. Clarke & Thaw, 40 Pa. 399; Strawbridge v. Bradford, 128 Pa. 200, 205.
R. W. Irwin, with him George B. Parker, for appellees. -- The motorman was guilty of negligence: Pittsburg, etc., Pass. Ry. Co. v. Caldwell, 74 Pa. 421; Levin v. Second Avenue Traction Co., 194 Pa. 156.
The court should not have submitted to the jury the question of the plaintiff's contributory negligence: Philadelphia City Pass Ry. Co. v. Hassard, 75 Pa. 367; Bradford City v. Downs, 126 Pa. 622; Taylor v. Del. & Hudson Canal Co., 113 Pa. 162; Sandford v. Hestonville, etc., Pass. Ry. Co., 153 Pa. 300.
Before MITCHELL, C.J., DEAN, FELL, BROWN, MESTREZAT and POTTER, JJ.
The plaintiff, a boy seven years and eight months old unaccompanied by any one, was received as a passenger on one of the defendant's cars. Soon afterward, the conductor, in pursuance of a regulation of the company, left the car in charge of the motorman, who had the entire management of it over a part of the line on which the travel was light. After the conductor had left the car, the plaintiff opened the front door and went out on the platform to tell the motorman where he wanted to get off. He remained on the platform with the motorman's knowledge and without objection or warning, while the car ran a distance estimated by one witness as 1,000 yards, and by another as half a mile. When near the crossing where he wished to get off, the plaintiff stepped down on the step and held fast to the railing. As the car passed the crossing, he either stepped or jumped off and was injured. The court left it to the jury to find whether the motorman was negligent in permitting the boy to ride on the front platform, but declined to submit the question of...
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