112 Pa. 414 | Pa. | 1886
delivered the opinion of the court, April 19th, 1886.
This action was brought by Clarence William Layer against the Philadelphia, Wilmington & Baltimore Railroad Company to recover damages for a personal injury received through the alleged negligence of the company. On the 30th December, 1881, the plaintiff, a child of six or seven years of age was walking up Second street, in the city of Philadelphia; when he came to Washington avenue, he found a train of freight cars of the defendant company extending along the avenue and covering, the Second street crossing. One of the cars, loaded with long lumber, projecting over the bumper, was connected with the box car behind it by a beam of wood or coupling pole six inches or more in diameter, and from twelve to fourteen feet in length. A lad named Strause, a few minutes before the accident, had ridden upon this beam or pole across Second street; and it appears that a company of other little boys had a drum on the north side of the train, and with
There was considerable conflict in the evidence as to whether or not the train, at thé timé the child attempted to pass under the coupling of the cars, was in motion! or was standing upon the street crossing. The jurors were very clearly instructed, however, that if the train was in -motion when the plaintiff attempted to pass through it, their verdict must be for the defendant; and as the jury found for the plaintiff, we must assume that it was not in motion, but that it was standing upon the crossing of Second street. The verdict is conclusive' upon this question of fact, and the second assignment of error,, which proceeded wholly upon the assumption that the train was in motion,' in consequence of the verdict becomes unimportant.
The single question for our consideration, therefore, is upon, the refusal of the court to affirm the defendant’s first point, which is as follows:
“It being conceded that the child crossed between the.cars,, taking hold of-the coupling just as the train started,, there was no duty of the defendant to it, and the verdict should be for the defendant.”
It may perhaps be conceded, in the language of the point, that, when the child took hold of the coupling, the train was just .about to start, inasmuch as the train, at .or near that instant, actually did .start; but' we cannot say, as matter of law,, that, in the act of starting, there was no duty of the defendant.: to this child.
Negligence has' very often been defined to be the absence of care under -the circumstances. There was evidence in the cause tending to show that the train was not only standing upon the street, but that it had been standing there, as an obstruction to-the crossing, for ten minutes; that several .adult, persons, in the meantime, had crossed the. avenue over or under this coupling; that a score or.more of children were at the time playing in the street, on the north side of the train; .that one of these boys had actually ridden upon this pole across.
Whether or not, therefore, the defendant was guilty of negligence, in our opinion, was a question of fact to be determined upon a consideration of all the evidence. There was evidence,' we think, from which that fact ¿night be fairly inferred, and the determination of that question was properly submitted to the jury. The facts, as we have stated them, or some of them, were denied, but the veracity of the witnesses, the conflict in the evidence, and the preponderance of the proofs were also for the jury.
Whether or not an attempt on the part of an adult person to cross over or under a train obstructing the crossing of a public street, in case of injury, is negligence per se, or merely evidence of negligence, we are not called upon to decide; we are now considering the duties and responsibilities of the railroad company, with reference to a case where contributory negligence cannot be asserted. The plaintiff was, at the time of the injury, a child 8f tender years, without the experience and discretion which would enable him to understand the
Judgment affirmed.