208 Pa. 641 | Pa. | 1904
Opinion by
Julius Hyman, a boy about ten years old with a number of other boys of the same age was going from school along Race street in the direction of Third about four o’clock in the afternoon of December 13, 1900, when they attempted to get on a four wheeled truck going in the same direction. The truck was loaded, had standards at the side connected by chains and the driver sat on a high seat in front. Two of the boys got up on the truck from behind. At Third street it stopped for a passing car and then Hyman climbed up at the side between the wheels to the body of the truck and stood with one foot on an iron bar, holding on by his hands to one of the standards. He had his satchel filled with school books which he was taking home with him. As soon as the car passed the driver of the truck started up his horses at a slow trot and immediately after starting called to the boys to get off. Those on the hind end of the truck did so; Hyman, in an apparently perilous position between the wheels of the truck did not at once obey
It is alleged that the allegata and probata do not agree and that the variance is so wide that under the law a verdict cannot be sustained. The second count of the declaration charges that, “The child became frightened by the action of defendant’s servant and agent and was put in fear of bodily injury by reason thereof, was forced and compelled to jump and did jump from the wagon while it was in motion, and in consequence thereof was thrown and fell underneath the wheels whereby he was greatiy bruised.”
On the averments of this count, the court submitted the evidence to the jury, evidently relying on the late casé of Brennan v. Merchant & Company, 205 Pa. 258. That case is sound law and if the facts are substantially the same, the principle there announced under this second count ought to rule this one. Justice Mestbezat in that case says, “If it was the intention of the driver to remove or drive the boy from the wagon by striking him on the hand with his whip and thereby causing him to fall or jump from the wagon it was a grossly negligent act.”
There is evidence, more than a scintilla, that the driver when the -boy was in a perilous situation lashed him on the legs with the whip; the purpose palpably was to drive him from the moving truck. Whether in terror he jumped, or fell, or whether the lash had wrapped his leg and when the driver attempted to withdraw the whip the boy was pulled from his hold on the standard because in his fright he had not presence of mind to maintain it, cannot exculpate the driver from negligence in attempting by this brutal conduct, to drive a boy of this tender age from the moving truck. The negligence was by the use
“ 3. If the jury find that Julius Hyman, the plaintiff in this casé, being then but ten years of age, climbed upon defendant’s dray, while it was being driven along the streets of the city of Philadelphia, and was engaged in riding thereon in a dangerous position and one likely to expose him to risk of being thrown off and injured by the motion of the dray, and while the child was in this position, the driver, seeing the child on the dray, instead of stopping it and putting the child off, or allowing him to get off, without checking the speed of the horses, took his whip and struck at the child for the purpose of driving it off the dray or compelling it to get off while in motion; and if the jury further find that the child was either knocked off the wagon by the force of the blow, or the pull of the whip catching his shoe or through fright relaxed his grip of the side of the wagon and fell off and under the wheels and was injured, this is such negligence on the part of the defendant’s servant as to render the defendant responsible for this suit. Answer: That point is true, gentlemen,- and it is affirmed.”
All the assignments of error are overruled and the judgment is affirmed. - ■