241 Pa. 1 | Pa. | 1913
Opinion by
At the time of the accident the injured child was less than sis years of age. Contributory negligence can not be imputed to a child of such tender years and therefore the whole case turns on the question of the negligence of the defendant. Negligent operation of the car by the motorman is charged and this question was submitted to the jury at the trial. The only question raised by appellant is whether the evidence introduced by plaintiff discloses any negligence for which defendant is liable in damages. The negligence relied on to sustain a recovery is that the motorman failed in the performance of his duty to keep a lookout ahead so as to see dangers and avoid accidents such as occurred in this case. Appellee contends that if the motorman. had been looking ahead, as it was his duty to do, he would have seen the
The first assignment relates to that part of the charge in which the learned trial judge instructed the jury
The case was carefully tried and every disputed question was submitted to the jury in a charge free from just criticism. There is only one question in the case and that is whether it should have been submitted to. the jury at all. It is only in clear cases that the courts can declare the rights of the parties as a matter of law in controversies growing out of negligent acts. While this is a close case we think it was for the jury.
Judgment affirmed.