92 Pa. 450 | Pa. | 1880
delivered the opinion of the court, February 2d 1880.
Previous to the accident which caused the death of the plaintiff’s son, he and older boys had been in the habit of supplying with water to drink, the drivers and conductors, who encouraged them to do this by giving them pennies. At the time, the plaintiff’s child was at the defendant’s cars for .that purpose. The plaintiff not only had knowledge of this habit, which began before the summer vacation of the public school and was continued in the vacation, but she permitted it. She saw the money her child made, furnished him with cup and pitcher, and cautioned him to be careful in getting on and off the cars.
The child was not seven years of age. He was incapable of negligence, and could not use the care required of a mature person under like circumstances. His business was with the defendant’s employees — to give them water and receive a reward. This is not the case of a child having occasion to cross the track in going to school, or for other purpose; nor of one that had wandered into the street without the parent’s knowledge; nor even of one permitted to play on the street. If it be that the plaintiff’s testimony warrants an inference of negligence by the defendants, because their drivers and conductors encouraged this child with others to furnish them water, the admitted fact that the child’s act was with the plaintiff’s permission, authorized the judgment of nonsuit, for the reason given by the learned judge of the Common Pleas.
The argument of counsel certainly is ingenious in support of his proposition, that “the negligence of the statutory plaintiff, arising from knowledge or direct act, cannot preclude recovery where there has been no contributory, negligence on the part of deceased.” However, this is not an open.question. In Smith v. O’Connor, 12 Wright 218, it was held, that it is not unjust to require a defendant to answer for the mischief done by his wrongful conduct,
Most frequently, in trials, the question whether there was reasonable care on the part of the parent is a fact for the jury ; but where the testimony of the plaintiff directly shows his contributory negligence, it is the duty of the court to pronounce the law.
Judgment affirmed.