Summers v. Bergner Brewing Co., No. 414

No. 414 | Pa. | Oct 5, 1891

Opinion,

Mr. Justice McCollum:

May Summers, a child four years old, by her next friend and father, brought this action against the Bergner and Engel Brewing Company, to recover damages for injuries she received by being run over on a public street in Philadelphia by a team and wagon belonging to the defendant company and then engaged in its work and in charge of its employee. It is alleged that the accident was the result of the negligent driving of the team. There was evidence that at the time of the occurrence the driver was asleep, and that the team was on a descending grade and going at a rapid gait. The child when discovered was upon her feet and being turned around between the fore legs of one of the horses, but before she could be rescued she was thrown down and struck by one wheel of the wagon and sustained injuries from which she has never recovered, including the loss of the sight of one eye. The negligence and the accident were, under the evidence, closely connected, and to the ordinary observer inseparable. The inference that the former caused the latter is not a strained one, but a reasonable and natural result of the testimony. Aside from the statement of the driver, whose account of the affair was incoherent and confused, there was nothing to indicate that the child ran hastily or impulsively under the horses or the wagon, and certainly there is no presumption that she did so. Besides, a child four years old cannot be held responsible for contributory negligence. We cannot assume that she was a trespasser, or that her actions were negligent and rash, merely because her evidence fails to explain how she became involved in the peril in which she was discovered. In the absence of testimony on this point, the reasonable inference is that she was run over while crossing or playing in the streets ; and when, as here, it affirmatively appears that the driver was asleep and the heavy team and wagon were moving down grade at a rapid gait, it is a question for the jury whether the negligence of the defendant caused the injuries.

In Hestonville Co. v. Connell, 88 Pa. 520" court="Pa." date_filed="1879-02-17" href="https://app.midpage.ai/document/hestonville-passenger-railway-co-v-connell-6236008?utm_source=webapp" opinion_id="6236008">88 Pa. 520, cited by the appellant, it was held that there was no defect in the car, or neglect in its management, and that the company was not responsible for injuries received by a child from his sudden and unexpected attempt to mount the front platform of the car while the driver, who was also conductor, was on the rear platform and could not have foreseen or guarded against the act; but Mr. Justice Gordon, in delivering the opinion of the court, said; “ It is not a case of mere negligence on the child’s part, as if it had been run over whilst crossing or playing in the street: that would raise a question very different from the one in hand.” In Lombard Ry. Co. v. Steinhart, 2 Pennyp. 358" court="Pa." date_filed="1882-04-03" href="https://app.midpage.ai/document/lombard--south-streets-passenger-railway-co-v-steinhart-6309726?utm_source=webapp" opinion_id="6309726">2 Penny. 358, substantially the same questions were raised that we are invited to consider in this case, and they were decided against the company. There is a striking resemblance between the company’s sixth point in the case cited, and the appellant’s third point in the case under consideration. In Lombard Ry. Co. v. Steinhart, supra, the plaintiff recovered a verdict in the court below, and in affirming the judgment this court said: “ The main question, then, was whether the negligence of the railway company caused the injury. While some of the evidence was conflicting, yet there was amply sufficient, if believed, to justify the jury in finding it as a fact. There was evidence that the driver of the car was intoxicated, and driving at a rapid rate of speed, without giving that attention to the observance of any object on the track which his duty required.”

There was no exception taken in the court below to the admission of evidence that the loss of sight was attributable to the accident, nor was the court requested to withdraw it from the jury. It is now suggested and argued that the testimony on this point was insufficient to justify an inference that the defect of" vision was the result of the casualty, and we are requested to convict the court below of error, because there was not an unsolicited instruction to that effect. It is an unusual request, but as we think the testimony of the experts required the jury to determine whether the loss of sight was one of the disabilities caused by the accident, we dismiss it without further comment.

The record of the suit in the Court of Quarter Sessions, between the commonwealth and John Dillenz, was not relevant to this issue and was therefore properly excluded.

The specifications of error are overruled and

The judgment is affirmed.