8 Pa. Super. 210 | Pa. Super. Ct. | 1898
Opinion by
This action was brought by John S. Phillips, the father of Malcolm Phillips, to recover for expenditures on account of injuries to Malcolm and for the loss of his services during minority. It was tried with an action hy Malcolm for personal injuries growing out of the same accident, and the jury returned verdicts for the plaintiffs in both cases. The boy’s case was appealed to the Supreme Court, where the only error assigned was to the refusal to give binding instructions for the defendant. In a per curiam opinion, the Supreme Court said: “ The only inquiry, therefore, is whether there is any evidence for the consideration of the jury on the questions of defendant company’s negligence, and the alleged contributory negligence of the plaintiff. A careful consideration of the testimony has satisfied us that there was, and that the court was clearly right in refusing the point and in submitting the case to the jury on those controlling questions of fact.” See Phillips v. Traction Co., 183 Pa. 255. Under this decision all inquiry as to the negligence of the- defendant and of the boy, so far as these questions form integrant parts of this case, may be eliminated from the present discussion.
The first specification of error is to the refusal of the court to affirm a point that under all the evidence the plaintiff was guilty of negligence which contributed to the injuries sustained by his minor son and, therefore, he cannot recover. It must be conceded that where want of care on the part of a parent contributes to the injury of the child, the parent cannot recover damages growing out of such injury. His duty is to protect the child from danger, and the performance of this duty must be commensurate with the age and needs of the child. In this
There is no fixed standard of duty by which the liability of either party in the case before us is to be ascertained. The conduct of the father and all the attending circumstances are to be considered in determining whether he was negligent in the performance of his parental duty; and if so whether this contributed to the injury of the boy. The grandmother being in loco parentis, her charge of the boy was considered, that of the father. Whether she had exercised due care was submitted to the jury as a question of fact, and the father’s right to re
No complaint is made of the instruction given to the jury. It is not alleged that the charge contained anything erroneous. The exception is solely to the refusal to take the ease from the jury and direct a verdict for the defendant. We are not prepared to say that this refusal was error. By statute bicycles and carriages drawn by horses are given the same rights on public highways. It is lawful to use a carriage on the highway for pleasure at any time: Piollet v. Simmers, 106 Pa. 95. On like principle, under the statute, it is lawful to ride a bicycle on the highway for pleasure. The law makes no distinction on account, .of age. On this point the capacity of the individual to observe due care may be brought in question; the ability, age, intelligence, judgment and conduct of minors may then become material. It is familiar law that “ A boy’s capacity is the measure of his responsibility.” The law fixes no arbitrary period when the immunity of childhood ceases and the responsibilities of life begin. Under the age of fourteen the presumption of incapacity prevails. At fourteen a minor is presumed to be sensible of danger and to have the power to avoid it. While these presumptions are rules of law to be declared by the court, they are not conclusive, and may be overthrown by proof of the actual capacity of the infant in each ease: Nagle v. Railroad Co., 88 Pa. 35; Strawbridge v. Brad
Here, as in other cases, the burden was on the plaintiff to prove the negligence of the defendant, while proof of the plaintiff’s contributory negligence was cast upon the defendant. The plaintiff will not be called upon to disprove negligence on his part, by negative testimony, in the first instance. If he establishes a case against the defendant without disclosing negligence on his own part, he is entitled to go to the jury. Notwithstanding the able and ingenious argument of appellant’s counsel on this question, we see no reason for departing from the established rule of procedure.
What has been said sufficiently meets the objections raised by the specifications of error, they are overruled and the judgment is affirmed.