Pittsburg, A. & M. Passenger Railway Co. v. Caldwell

• Decision Date: 02 April 1874
• Citation: 74 Pa. 421
• Parties: Pittsburg, Allegheny and Manchester Passenger Railway Co. <I>versus</I> Caldwell.
• Court: Pennsylvania Supreme Court

74 Pa. 421

Pittsburg, Allegheny and Manchester Passenger Railway Co. versus Caldwell.

Supreme Court of Pennsylvania.

November 15, 1873.

April 2, 1874.

November 15th 1873.

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

Error to the District Court of Allegheny county: No. 118, to October and November Term 1873 A. M. Brown, for plaintiff in error.—Negligence is not to be presumed: Phila. & Read. R. R. v. Hummell, 8 Wright 375; Kay v. Penna. R. R., 15 P. F. Smith 269. The plaintiff having been pushed off by the other child, she is without remedy, notwithstanding her tender years: Phila. & Read. R. R. v. Spearin, 11 Wright 300. The driver, in permitting the children to ride, acted out of the range of his employment, and the defendants are not liable: Flower v. Penna. R. R., 19 P. F. Smith 210; Penna. R. R. v. Books, 7 Id. 339.

As to the paper sent out with the jury, he cited Morrison v. Moreland, 15 S. & R. 61; Frazier v. Funk, Id. 26; Hall v. Rupley, 10 Barr 231; Carson v. Watson, 4 Phila. Rep. 88.

S. M. Raymond (with whom was C. B. M. Smith), for defendant in error.—The court was not informed of the grounds of objection to the rules; sending them out was a matter of discretion; those not given in evidence could do defendants no harm: O'Hara v. Richardson, 10 Wright 385; Riddlesburg Coal Co. v. Rogers, 15 P. F. Smith 416.

The opinion of the court was delivered, April 2d 1874, by WILLIAMS, J.

It is clear from all the evidence in this case, and under the instructions of the court, the jury must have found that the accident which resulted in the loss of the plaintiff's leg, would not have happened if she had not been permitted to ride on the front platform of the defendant's car. If the rules of the company had not forbidden it, there can be no doubt that it was gross negligence for the driver to allow children as young as the plaintiff and her companion, to get on the front platform and to ride there. If they got on without his permission, instead of consenting that they might remain on the platform, it was his duty to compel them to go inside the car, or to stop and put them off; and if the plaintiff was injured by his negligence in allowing them to ride on the platform, the company is clearly liable for the injury, unless the plaintiff's negligence contributed to produce it. But 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. In this case it is conceded that negligence is not imputable to the plaintiff, who was an infant of tender age, and not of sufficient capacity to foresee the danger to which she was exposed. What matters it, then — even if the evidence would warrant the inference — that the plaintiff's companion, who was a child only eleven years old, may not have done all she could to prevent the plaintiff from jumping off the platform while the car was in motion? or that, when she saw her in the act of jumping, she may have been guilty of indiscretion or carelessness in pushing or swinging her from the car, and that her negligence in this respect may have contributed to the accident? The plaintiff was no more responsible for the conduct of her companion than she was for her own; and the negligence of her companion — even if negligence could be imputed to a child of her age — cannot be regarded as the negligence of the...