88 Pa. 520 | Pa. | 1879
delivered the opinion of the court, February 17th 1879.
As we gather from the evidence and from the statements of counsel, on the 3d day of March 1877 at about 11 o’clock, a.'m., as the car of the defendant below, was passing along Lancaster avenue, between Fifty and Fifty-first streets, William Connell, the plaintiff, a child of six years and nine months of age, in attempting to jump or climb upon the forward platform, slipped, fell and received the injury complained of by the ear passing over him. 'This was a ónehorse reversible car, having both platforms unenclosed, as is customary with such vehicles, and was in charge of but'one person, who acted both as driver and conductor. The car was going slowly, and the driver was, at the time of the accident, engaged upon the rear platform and did not observe the child until after it- was hurt. There is, therefore, no doubt that the accident, resulted directly from the plaintiff’s own trespass, and, young as he was, had the damage resulted to the defendant’s property instead of to the plaintiff’s person, he would have been answerable therefor: McGee v. Wil
In all,this there was nothing either unlawful or dangerous. The remaining question is, what misuse was there of these lawful appliances and arrangements, from which a presumption of negligence might be raised ? If, as in the case of the Railway Co. v. Hassard, 25 P. F. Smith 367, improper use had been made of the open platform by permitting the child to leave it whilst the car was in motion, or had it been in the car and had the driver neglected any duty in respect to it, in either case, a question of negligence would have been raised which, properly, could bo determined only by a jury. This, however, is not the question here presented; it is, rather, whether this company was bound to the use of extraordinary care for the sole purpose of preventing injury to trespassing children. It is not a case of mere negligence on the child’s part, as if it had been run over whilst crossing or playing in the street; that would raise a question very different from the one in hand. The accident here complained of could not have happened but by the direct act of the plaintiff in his sudden and improper attemut to
The mistake, in the present case, was in' assuming that the proximate cause of the injury complained of might be found in the structure or management of the car, whereas, as we have shown, the car itself was properly constructed and it was properly used in the ordinary and customary manner, and had the plaintiff not attempted to board it in a rash and unexpected manner no harm would or could have occurred.
This case is, in fact, but a repetition of the one above cited, and the accident was one resulting from childish'indiscretion alone, and for it the defendant is not responsible.
Judgment reversed