Wrasse v. Citizens' Traction Co.

• Decision Date: 04 January 1892
• Docket Number: 116
• Citation: 23 A. 345,146 Pa. 417
• Parties: ERNEST WRASSE v. CITIZENS TRACTION CO
• Court: Pennsylvania Supreme Court

23 A. 345

146 Pa. 417

ERNEST WRASSE v. CITIZENS TRACTION CO

No. 116

Supreme Court of Pennsylvania

January 4, 1892

Argued October 28, 1891

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY.

No. 116 October Term 1891, Sup. Ct.; court below, No. 377 March Term 1889, C.P. No. 1.

On January 26, 1889, service was accepted of a summons in an action of trespass by Ernest Wrasse, by his next friend Gustav Wrasse, against the Citizens Traction Company, to recover damages for personal injuries. Issue.

At the trial, on October 21, 1890, the following facts were shown:

On July 11, 1888, Booth & Flynn, contractors with the defendant company, were engaged in making the necessary alterations in the defendant's road to adapt it to use as a cable line the road having been operated theretofore by means of horse power. The plaintiff, a boy ten years of age, was working on the afternoon of that day as a substitute for his brother carrying water for the use of the workmen employed by Booth &amp Flynn. The company was still running horse cars over the road, and the plaintiff, while riding on one of its cars, jumped or fell off, turned under the wheels and was injured.

The plaintiff testified, in substance, that he was standing at the side of Penn Avenue, near Frankstown Avenue, with a bucket of water in his hand, when the car came along, going in the direction of the point where the men were to whom he was to supply water; that a man on the front platform called out to him, "Hello, Kid, the driver wants you," and the plaintiff went forward toward that platform with his bucket; that a man on the platform took the bucket and put it on the car, and then hoisted the plaintiff up to the platform, and two children who were on the platform drank out of the bucket; that there were four or five persons on the platform, besides the children; that the car moved on rapidly, for about half a square, when it struck a switch or something, and some man on the platform bumped against the plaintiff and caused him to fall off; that during the time he was on the car, the plaintiff was standing by the steps at the side of the platform, at one side of and behind the driver who had seen him taken on the car and saw him standing there. On cross-examination the plaintiff testified as follows:

"Q. I want to ask you whether you hadn't got on the hind platform of this particular car, while it was standing at the corner of Penn and Frankstown Avenues? A. Maybe I got on; but I don't know. Q. Before that car started? A. I can't tell the cars. Q. Before that car started away from Frankstown Avenue, didn't the driver come back and tell you to get off? A. Not that I heard; nobody ever came and chased me off. Q. Hadn't you been told by anybody to get off that car before you were hurt? A. No, sir. Q. By nobody? A. I heard nobody say it. Q. Can you tell us where it was you first got on that car, the car on which you were riding just before you were hurt? A. I got on lots of places. Q. When did you first get on that car that you were riding on immediately before you were hurt? A. I don't know; if I knowed the car I could tell you better. I don't know the cars. Q. What I want to get at is, whereabouts was the car that you were riding on, immediately before you got hurt? Where was that car when you first got on it that afternoon? A. On which car? Q. No, where was that car in East Liberty at the time you first got on that afternoon? A. I don't know. Q. You had been on this car on which you were riding immediately before you were hurt, before the man lifted you on, hadn't you? A. I couldn't tell you. Q. You couldn't state whether you were on or not? A. I was on lots of cars. Q. Can't you tell us whether you had been on this particular car before that time? A. No, sir; I couldn't tell you. Q. How far below Penn and Frankstown Avenues was it where you got on this car when the man lifted you on? A. I don't know what is the name of the street where I was when I got on. Q. Didn't the driver speak to you before this man lifted you on with the bucket? A. No driver chased me off. Q. But didn't the driver speak to you about getting on this car before the man lifted you on with your bucket? A. I couldn't tell."

The testimony of other witnesses called by the plaintiff, and of witnesses for the defendant, tended to show that the plaintiff had mounted the rear platform of the car, while it was standing at the corner of Penn and Frankstown Avenues before it started on its trip; that the driver ordered him off three or four times, and put him off once or twice, and he was back on the rear platform when the car started; that after having gone a short distance, it stopped to let on passengers at Collins Avenue when the plaintiff stepped down to the ground, and being called to by a passenger on the front platform who asked for a drink, plaintiff walked forward and got on that platform; that the driver ordered him off twice before the car started again, and then turned his attention to the passengers, the car having by that time become filled with people, principally women and children returning from a picnic, and the driver, being also the conductor, did not notice that the plaintiff still remained on the car. Robert White, the driver, testified for the defendant that he did not know the plaintiff was on the car at any time between the departure from Collins Avenue and the occurrence of the accident, and did not look to see whether the boy had gotten off there or not; that the distance from Collins Avenue to the place where the accident occurred, was about five hundred yards, and at the rate at which he had to drive at that time, it took between ten and fifteen minutes to travel that distance. On cross-examination, the witness testified:

"Q. Did you look around on the front platform of the car to see who were there? A. I could see without looking around. Q. You could see who was there without looking around? A. Yes, sir. Q. Then you had no trouble to see who was on the front platform? A. I could see who was on the front platform; yes, sir. Q. All the time after you left Collins Avenue? A. Yes, sir."

The only witness, besides the plaintiff, who described the manner in which the accident occurred, was Louis Hensel, called by the plaintiff. The witness testified that the plaintiff said, while the car was at Collins Avenue, that he was going "to ride down as far as the blacksmith shop," speaking loud enough for everybody on the car to hear; that when the car reached a point opposite the blacksmith shop, the plaintiff told the witness he wanted to get off there, and asked him to hold the bucket; that the witness took the bucket, and cautioned the plaintiff to be careful that he did not fall; that the plaintiff then jumped off the car backward, while it was in motion, stumbled, and was caught by his leg under the wheel. Two witnesses for the defendant testified that the plaintiff, while they were taking him home in a carriage, after his leg had been bandaged by a physician, talked of the accident and said that the driver of the car was not to blame, but the fault was his own; that he jumped off, ran against some person, and was thus thrown under the car. Portions of the testimony are quoted in the opinion of the Supreme Court, infra.

The testimony being closed, the court, COLLIER, J., charged the jury in part as follows:

The allegation of negligence is that the driver allowed this little fellow to stay on the platform of the car; not that he knew the boy was getting on, but that after he was on, he allowed him to stay there and did not stop the car or do something to put him off, knowing that he was a child of tender years. . . .

[The allegation is that the driver, Mr. White, a very respectable and careful-looking man, allowed this boy to stay on the platform, did not stop the car and put him off; and that, the plaintiff being a child of tender years, no negligence could be imputed to him. That proposition is disputed, and you will see how it has been disputed by the evidence, and it is for you to say whether you believe the defendant's or the plaintiff's evidence. It is admitted that the driver did not stop and put him off; that is clearly shown by some of the witnesses, if you believe them, which is for you and not for the court.]

[Some of the testimony tends to show that he had put this boy off from the rear platform two or three times, and told him not to get on, and that when he again found him on the platform he told him again to get off; and when they stopped at Collins Avenue he told him there to get off; and then went on, supposing the boy was off the car, and he did not notice him from that time until the boy was hurt. If that was the case, what more could the driver do? Was it not stopping at a regular stopping place, seeing the boy there and telling him to get off; and then going on and not seeing him, supposing, of course, he was off the car? The testimony on the other side contradicts that; the boy himself tells a different story, and you will say which is correct.]

It was the duty of the driver to stop and put the boy off; either stopping for the purpose of putting him off, or at a place where he stopped for people to get on or off, telling him and giving him a chance to get off, and seeing that he got off or being satisfied that he was off. If you find that was the case, then the driver could not do any more, unless he stopped the car and took the boy by the arm and put him off, which I do not think the law means. [If you find that the boy's story is the correct one, then you would find in favor of the plaintiff upon that point.] But there are other things in the case for your consideration. If you should find that point in favor of the plaintiff, the...