Rapaport v. Pittsburgh Railways Co.

• Citation: 93 A. 493,247 Pa. 347
• Decision Date: 02 January 1915
• Docket Number: 89,88
• Parties: Rapaport v. Pittsburgh Railways Co., Appellant
• Court: United States State Supreme Court of Pennsylvania

93 A. 493

247 Pa. 347

Rapaport v. Pittsburgh Railways Co., Appellant

Nos. 88, 89

Supreme Court of Pennsylvania

January 2, 1915

Argued October 14, 1914

Appeals, Nos. 88 and 89, Oct. T., 1914, by defendant, from judgment of C.P. Allegheny Co., Nov. T., 1911, No. 498, on verdict for P. Rapaport, plaintiff, in case of P. Rapaport and Israel Rapaport, by his next friend and father, P Rapaport, v. The Pittsburgh Railways Company. Reversed.

Trespass to recover damages for personal injuries. Before DAVIS, J.

The opinion of the Supreme Court states the facts.

Verdict for P. Rapaport for $2,000 and for Israel Rapaport, a minor for $2,500 and judgment thereon. Defendant appealed. The appeal from the judgment entered in favor of Israel Rapaport, the minor, was nonprossed.

Errors assigned were in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n.o.v.

The assignments of error are sustained; judgment is reversed and is here entered for the defendant.

Richard C. Long, with him Clarence Burleigh and William A. Challener, for appellant. -- The mother was guilty of contributory negligence in permitting the child to cross the street in front of the trolley car: Glassey v. Hestonville, Mantua & Fairmount Pass. Ry. Co., 57 Pa. 172; Philadelphia & Reading Railroad Co. v. Long, 75 Pa. 257; Smith v. Hestonville, Mantua & Fairmount Pass. Railway Company, 92 Pa. 450; Cauley v. Pittsburgh, Cincinnati & St. Louis Railway Co., 95 Pa. 398; Westerberg v. Kinzua Creek & Kane R.R. Co., 142 Pa. 471; Gillespie v. McGowan, 100 Pa. 144; Pittsburgh, Allegheny & Manchester Railway Co. v. Pearson, 72 Pa. 169.

Ralph P. Tannehill, for appellee. -- It is not negligence per se to permit a child of tender years to go upon a public street traversed by electric cars: Kroesen v. New Castle Electric St. Railway Co., 198 Pa. 30; Saxton v. Pittsburgh Railways Company, 219 Pa. 492.

Before FELL, C.J., BROWN, POTTER, ELKIN and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE MOSCHZISKER:

This was an action to recover damages for injuries to a minor child. Two verdicts were rendered, one in favor of the child for $2,500, and the other in favor of the parents for $2,000. Judgment was entered on each verdict and two appeals were taken by the defendant; but the first of these was not pressed, and a non-pros was entered. The judgment in favor of the parents is now before us and the question involved may be stated thus: Is a parent guilty of contributory negligence who sends an unattended child of tender age across a street traversed by a double line of fast moving electric cars, when the parent sees a car standing a short distance away and about to start?

The evidence produced by the defendant tended to show that the child suddenly darted from the pavement in front of the car and was hurt without any negligence on the part of the motorman. In deciding this appeal, however, we shall pay no heed to the testimony presented by the defendant, but confine our attention exclusively to that relied upon by the plaintiffs. In other words, for present purposes, we take the negligence of the defendant as conceded and look at the evidence in the light most favorable to the plaintiffs. When the case is thus reviewed, these facts plainly appear: P Rapaport resided with his wife and family in the City of Pittsburgh on a street which was traversed by a double line of electric cars; on the evening of April 11, 1911, between seven and eight o'clock, "about dusk," when the street lamps were lighted, their boy, Israel, a child three and one-half years old, was on the front pavement of his parents' house; an older brother gave him a penny, whereupon he looked up to his mother who was sitting at the second story window and asked permission to cross to a candy shop on the other side of the street; although Mrs. Rapaport saw one of the electric cars of the defendant company standing not more, and possibly much less, than 100 feet away, yet she granted permission to this young child to cross the street; the mother was in charge of the boy at the time and knew when she granted her permission that she was sending the child unaccompanied and without a protector across a street which was frequently traversed in both directions by rapidly moving electric...