176 Pa. 376 | Pa. | 1896
Opinion bv
On Sunday forenoon, the 17th of September, 1893, Michael Evers, four and one half years old, the son of jolaintiffs, was run over and lulled by defendant’s street car, on Front street between Bainbridge and Catherine in the city of Philadelphia. The plaintiffs lived at the corner of Meade and Swanson streets; the latter being parallel with Front and near to it; Meade is a narrow street or alley, running from Front to the river. The family of plaintiffs was made up of the parents and eight children. The mother had washed and dressed Michael, the deceased child, and then had permitted him to go with his elder brother Thomas, to a coal box on the lower side of Meade street, while she proceeded to wash and dress another of her children; about the time she had finished this one, two other of her children, girls, returned from church; on inquiry of them, she was told the two boys were still by the coal box; she then directed one of these to tell the boj^s to come home; one of the sisters immediately did as directed by the mother; the elder boy obeyed,
At the trial, the court below submitted the evidence to the jury to find: 1. Whether defendant was negligent. 2. Whether the parents were guilty of contributory negligence in not exercising proper watchfulness over their child.
The verdict was for plaintiffs, and we have this appeal by defendant, in which there is the single assignment of error, that the court should have peremptorily directed a verdict for defendant on two grounds: 1. Because there was no evidence of negligence on part of defendant, and 2. Because the evidence necessarily warrants no other inference than that of negligence on part of the parents.
As to the first proposition, it is based on the incorrect assumption that there was no evidence tending to show the motorman failed to fully perform his duty.
Eight witnesses testified, this child, in broad day, started from the curb, which is about seven feet from the rail, to cross the street when the car was fifty or sixty feet distant. Eugene O’Neill, an intelligent witness, a foreman of stevedores, testified
The cases cited by appellant are not applicable to the evi
This being a child, contributory negligence cannot be imputed to him; if an adult had been injured in the attempt to cross a street railway track in front of a rapidly moving car, fifty to sixty feet distant, in charge of a negligent motorman, quite another question would have been raised.
As to the alleged negligence of the parents, we are of opinion the court committed no error in also submitting that question to the jury. Clearly, if the evidence were undisputed, that these parents had habitually permitted a child of this age to play on the street on which ran the trolley car, there could have been no recovery; or, if the evidence had shown they did not on that day, under the circumstances, exercise the care which a child of such tender years demanded, there could have been no recovery. But it will be noticed the family was a large one, and not in affluent circumstances; the mother had only such aid in caring for the younger children as those older could give; she washed and dressed this one, and permitted him with his brother eight years old to go to the coal box on Meade street, where there was no railway track; when she had completed her motherly duty to the second child, and one of the daughters had returned from church she sent for both children; the eldest returned; the deceased one refused; she immediately sent again for him, but before he was reached the caprice and heedlessness of childhood had led him to Front street, where he was killed. It was not for the court to say, from this evidence, the parents were negligent. We think the following instruction of the learned judge of the court below on this evidence was all that defendant had the right to ask:
The assignment of error is overruled, and judgment affirmed.