McCabe v. Kain, 250 Pa. 444

McCabe v. Kain

250 Pa. 444 | Pa. | 1915

Opinion by

Mr. Justice Stewart,

In directing a verdict for the defendant the learned trial judge expressed in very vigorous terms his personal disapproval of the law which protects children under fourteen years of age from the charge of contributory negligence, to the extent of raising a presumption in their favor that because of inexperience they are incapable of appreciating danger. No harm would have come had the learned trial judge stopped here, but the appellant complains, and we think justly, that in applying the law to the facts presented he adopted the law as he thought it ought to be, rather than the law as it is, and as a consequence that he was unjustly thrown out of *446court. Plaintiff was between twelve and thirteen years of age when he sustained the injuries complained of. He had climbed upon a passing dray which was loaded with heavy barrels and driven by a servant of the defendant. He was unobserved by the driver at the time, but the latter’s attention being afterward attracted to him by some occurrence, he swung his whip around at the boy, and, according to the boy’s testimony, struck him with the lash. The boy then attempted to get from the wagon, and in doing so was caught by one of the rear wheels and injured. Several witnesses testified to having seen the driver use his whip at the boy, none of whom, however, saw the lash strike him. Technically the boy was a trespasser; he had gone upon the wagon uninvited. Had he been above the age of fourteen he would have been chargeable with contributory negligence in attempting to get upon a moving wagon in the manner he did; but because he was under that age the law will not impute to him an appreciation of the danger he ran in so doing, but leaves that question to be determined, not by the judge sitting in the case, but by the jury. Was it negligence on the part of the driver to use his whip in the way these witnesses say he did, under the conditions here presented, to make the boy get from the wagon? Did the boy attempt to get from the wagon in the way he did because of what the driver had done? If so, was he capable of understanding and appreciating the risk he ran in so doing? These are the questions in the case, and they were for the jury exclusively. We have considered the case solely in the light of the evidence offered by the plaintiff. The judgment is reversed and a venire de novo is awarded.