Pennsylvania Railroad Co. v. Bock
| Citation | 93 Pa. 427 |
| Parties | Pennsylvania Railroad Company <I>versus</I> Bock. |
| Decision Date | 29 March 1880 |
| Court | United States State Supreme Court of Pennsylvania |
Before SHARSWOOD, C. J., GORDON, PAXSON, TRUNKEY and STERRETT, JJ. MERCUR and GREEN, JJ., absent
Error to the Court of Common Pleas of Bucks county: Of July Term 1878, No. 67.
G. & H. Lear, for plaintiff in error.—When a child is placed in danger by the positive act of its guardian, it is contributory negligence: Kay v. Pennsylvania Railroad Co., 15 P. F. Smith 269. If parents permit a child of tender years to wander on a street, it is negligence: Phila. and Reading Railroad Co. v. Long and Wife, 25 P. F. Smith 257. It is the duty of the parent at all times to shield his child from danger, and this duty is the greater when the risk is imminent; the degree of protection is in proportion to the helplessness and indiscretion of the child: Glassy v. Hestonville, Mantua & Fairmount Passenger Railway Co., 7. P. F. Smith 172. See Smith v. O'Conner, 12 Wright 218; P. A. & M. Railway Co. v. Pearson and Wife, 22 P. F. Smith 169. See also the recent case of Smith v. The Hestonville Railway Co., 11 Norris 450.
The action for death by negligence is statutory, while that for the loss of the horse is a common-law remedy, and the two cannot be joined: Pennsylvania Railroad Co. v. Zebe, 9 Casey 328; North Pennsylvania Railroad Co. v. Robinson, 8 Wright 178; 1 Chitty, sect. 200. The wife had no cause of action for the horse, and there was therefore a misjoinder of her and her husband's right, with his alone: 1 Chitty 205, sect. 75.
B. F. Gilkeson, George Ross and L. L. James, for defendant in error.—Observation of the practice of teamsters, having a team of four or three horses, will demonstrate that the position of the driver is upon the back, or at the bridle of the near-side tongue horse. Whether the position of the father gave him the opportunities of control which it is claimed it did, was a question of fact for the jury, and for them alone; as such, it was submitted, and their verdict determines that they — whether from their own experience as farmers or otherwise — found the fact to be true. Whether the situation of the boy upon the horse contributed to the accident, is a question for the jury: Catawissa Railroad Co. v. Armstrong, 2 P. F. Smith 282. The question of contributory negligence is to be determined by a reference to the age, intelligence and physical strength of the person injured, and the circumstances under which the injury was sustained: Oakland Railroad Co. v. Fielding, 12 Wright 320; Philadelphia Passenger Railroad Co. v. Hassard, 25 P. F. Smith 367.
The defendant having taken his chances before a jury, without objection, should not now be permitted to unravel the whole case upon a question such as here raised. Upon the trial, the plaintiff below could have entered a non. pros. as to the counts for the horse and funeral expenses; and what might have been permitted below, in the nature of an amendment, is not ground for reversal after a trial on the merits: Shoenberger v. Zook, 10 Casey 24; Roop v. Roop, 11 Id. 59; Loew v. Stocker, 11 P. F. Smith 347; Kelsey v. Bank of Crawford County, 19 Id. 426.
The defendant's fifth point was, "that the plaintiff being about to drive a team, with two mules and a horse on the lead, across a railroad track, with a loaded wagon, where trains were running propelled by steam, having placed his son, seven years of age, on the lead horse over which he, the father, had no control, was guilty of negligence in placing his son in such a dangerous position, and cannot recover for the loss of his son or his horse killed by the passing train." Ans.: ...
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Heller v. Heller's Executors
...cannot be confidently declared to have done the defendants no harm, but constitutes error entitling them to a new trial: see Railroad Co. v. Bock, 93 Pa. 427, 434. The rule for judgment n. o. v. is discharged, and the rule for a new trial is made From Wellington M. Bertolet, Reading, Pa. ...
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| Pennsylvania & N. Y. C. & R. Co. v. Huff
... ... Huff, widow, and Lizzie Jane Huff and others, ... children, of Henry Huff, deceased, against the Pennsylvania & ... New York Canal & Railroad Company for damages for the death ... of the said Henry Huff by the alleged negligence of ... defendant ... On ... October 27, 1884, ... v ... Ogier, 35 Pa. 60, (80 feet; Railroad Co. v ... Ackerman, 74 Pa. 265, (10 feet;) Railroad ... Co. v. Bock, 93 Pa. 427, (60 feet;) ... Railroad Co. v. Hagan, 47 Pa. 244, (40 ... [8 A. 790] ... PER ... It ... would ... ...
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Fields v. Philadelphia Rapid Transit Co.
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