187 Pa. 57 | Pa. | 1898
Opinion by
The plaintiffs alleged, that their child met its death by negligence of defendant, and brought suit for damages. They introduced evidence tending to establish these facts. Their home was
The learned judge, being of opinion that no negligence on part of the driver had been proved, directed a nonsuit, and plaintiffs now appeal, assigning for error the ruling of the court.
Would the jury, from the evidence, have been warranted in finding negligence ? The wagon must have been twenty-five-to thirty feet distant when the child left the curb; what was his duty, as a driver in a much traveled street of a large city? Certainly, not alone to keep his team in the street, urge it to a faster gait, or check it if it went too fast or attempted to-run away; it was also his duty to look out ahead of him for obstacles or persons in front, and avoid running over them. Could the ordinarily careful driver of such a wagon have seen a little child twenty-five feet off just about to get in front of his horses ? It seems to us the jury might have answered, he could; if so, then he ought to have known the child might heedlessly get into danger, and it was his duty to stop, for no duty of care could be exacted from a child of these years. He was the only one who could exercise care. If, as one of the witnesses testified, he was not looking in front of him, then he ought to have been; if he was looking and saw the child, then he recklessly kept on, regardless, of its, to him, known ignorance and helplessness. It is true that, if the evidence warranted appellee’s- theory and that alone, that the child rushed suddenly from the curb in.