173 Pa. 146 | Pa. | 1896
Opinion by
This action was brought by a father to recover for expenses and loss of services resulting from an injury to his minor child. The only assignment of error to be considered relates to the refusal of the court to direct a verdict for the defendant. The testimony in relation to the rate of speed at which the car was moving, to obstructions in the street, to the attention which the motorman gave to his duties, and to the question whether the child who was injured came so suddenly upon the track, from behind a wagon as not to be seen in time to stop the car before he was struck, was conflicting and contradictory. If credit is given to the plaintiff’s witnesses the car was moving at an unusually high rate of speed, the view of the whole street in front was unobstructed, the child was seen by passengers in the car walking from the foot pavement to the track and would have been seen by the motorman if he had properly attended to his duty long enough before the point of the accident was reached to have enabled him to stop the ear; and the motorman instead of looking ahead was looking at a house at the side of the street
The only question raised at the trial which has been argued here is whether the parents of the child who was injured negligently permitted him to go upon the street without a suitable protector. The defense was confined to this ground, and the question of imputable negligence was not considered and is not now raised. The older boy was fourteen years of age. He was a member of his sister’s family, and had frequently aided in taking care of the child. The presumption is in favor of his capacity as a care taker, and there was no evidence of his incapacity, unless it be found in the particular occurrence under investigation. The question was for the jury, and the case should not have been withdrawn.
The judgment is affirmed.