Enright v. Pittsburg Junction Railroad

204 Pa. 543 | Pa. | 1903

Opinion by

Mr. Justice Brown,

When this ease was here before, 198 Pa. 166, on appeal from the refusal to take off a compulsory nonsuit, we held, in reversing the court below, that under the facts proven, the defendant company was negligent. On this appeal, the right of Joseph Enright, the minor, to recover is not questioned, if his testimony is to be believed; but we are asked to reverse the judgment in favor of the father on the ground of his contributory negligence and to send the case back for another trial on the boy’s claim for alleged errors in the charge of the trial judge.

The contributory negligence of the father, which appellant insists is a bar to his right to recover, is his carelessness in allowing his boy to be out on the street alone and to stroll away from home a square and a half, with young.companions, down along the railroad tracks, where they jumped on amoving train and the boy was hurt in getting off. He was ten years and six or eight months old on the day of the accident, which we judicially notice was Sunday. It was a day of rest in the late summer or very early fall, when the temptation to be out of doors is great. With all ordinary business suspended and the dangers incident to children on the street greatly diminished, the solicitude of the most anxious parents for the welfare of their little ones, longing to be out, would be naturally relaxed on the Sabbath, and, what might be negligence by them on any other day of the week, might not be on this. But, without regard to the day, ought the court below to have declared the father guilty of contributory negligence as a matter of law ? The boy was not a little, prattling child of so tender years that his very presence on the street away from home, unattended by anyone, was in itself evidence of the carelessness and neglect of his parents. He was nearly eleven years old—soon to reach the age of discretion. Many no older than he earn their own living and help to support needy or helpless parents. In the healthful development of children thousands of the age of this boy are daily seen on the streets of towns and cities, squares away from home and unattended, without a thought in the mind of the passerby that their parents are negligent; and even if, as here, they do stroll or wander into places of danger, and are hurt in their search for amusement, the law could not declare the parents careless without offending its own humanity. What was said under the facts in Philadelphia & Reading Railroad Co. v. Long, 75 Pa. 257, may be aptly repeated here : “ The doctrine which imputes negligence to a parent in such a case is repulsive to our natural instincts, and repugnant to the condition of that class of persons who have to maintain life by daily toil.” In his charge to the jury the learned trial' judge said : “ Now, it is the duty of parents to take proper care of their children and use all reasonable diligence to see that they do not get into places of danger; ” and he submitted it to them to determine whether, under the facts in the case, the father had been negligent. To more than this the appellant was not entitled.

The second assignment relates to what the court said in its charge about money that had been paid by an agent of the defendant company to the two boys who were on the car with En-right. McCarthy, one of them, testified that the agent had called to see him and given him money three or four times, and that it had been given to him voluntarily, as he had not asked for it. The other boy, Reardon, said the agent had given him money two or three times. In explanation, the agent testified: “ I gave them fifty or sixty cents, and maybe seventy-five cents or a dollar, I forget the amounts, to come into town to see the attorney once, and attend the trial once, and to get them their dinners; once they came in to make an affidavit to their two statements; I gave them money for their fare and also gave them money for their dinners ; I also paid their fare and paid for their dinners; this money was for that; they were poor, they sai<jj, and did not have anything; that is the reason the money was given.” These two boys were subpoenaed by the plaintiff as well as by the defendant at the first trial. When they came into court they were in charge of Robinson, the agent who had paid them the money, and Reardon testified that, when the attorneys for the plaintiff tried to speak to them, they were ordered not to do so by the agent who had them in charge. Robinson admits this in his testimony. On the second trial, when counsel for the plaintiff attempted to speak to them in court, he was stopped by the railroad detective and not allowed to have any communication with them. . Counsel for the appellee admits that he commented on these matters in his address to the jury; and it was not improper for him to do so, for the jury could have fairly concluded that the payments were made for a .purpose which was effected. In commenting upon this feature of the case, the court left it to them to determine whether the payments had been legitimately made, or for the purpose of influencing the testimony of the boys. The portion of the charge objected to is: “ Another matter has come into the case which you have a right to consider, as affecting the credibility of these two boys, and that is the fact that an agent for the defendant company paid them money at different times pending the trial of this case. You have heard his explanation of that; and while ordinarily it is a highly improper matter to pay a witness money, it is not improper, under certain circumstances, if the services of the witness are wanted, to pay his ordinary expenses. To illustrate what I mean: The testimony of the agent of the defendant company was that the counsel of the defendant company wanted these two boys in his office to make an affidavit. They had a right, of course, to demand their expenses to and from the office; and it was legitimate for him to pay it. If that and similar purposes is all that this money was paid for, then that was a perfectly legitimate transaction. But that is for you to-determine. You take the fact into consideration that these boys were paid money at different times pending the trial of this case; and taking the evidence, you will determine whether it was a legitimate payment or whether it was a payment for the purpose of influencing their testimony in this case. If it was for the latter, of course, it would affect their credibility.” In this there was no error.

The statement of the occurrence given by the injured boy, when in the hospital, to Robinson, the agent already referred to, differed very materially, according to that witness and Howell, the superintendent of the institution, from his testimony on the trial. When he was interviewed in the hospital, on the second day after the accident, as nearly as Robinson could fix the date,' he was lying on a cot, covered up ; one leg had been amputated, the other was badly lacerated, his head was cut open, and it is safe to assume he was in great suffering. Under these conditions, the representative of the company called upon this boy to learn from him his version of the accident. Older heads might not have been able to remember, and no just complaint can be made of that portion of the charge in which, after directing attention to. the inconsistent statements alleged to have been made by the boy, the jury were told : “ If he was suffering such pain at that time as to not know what he was talking about or as to affect his knowledge of the subject, then you take that into consideration as to whether this interview does affect his credibility or not and to what extent.”

The assignments are dismissed and the judgments are affirmed.