Argued October 8, 1926.
These appeals are from judgments in favor of the plaintiffs in an action to recover for injuries to the minor plaintiff, a boy seven years of age, alleged to have resulted from the negligence of the driver of defendant's wagon in so frightening the boy that he fell from the wagon directly in the path of a truck which was closely following and was seriously injured. The verdicts were in favor of the plaintiffs and the only alleged error properly assigned is to the refusal of the court to give binding instructions in favor of the defendant.
The trial judge submitted the disputed questions of fact to the jury in a charge which was so favorable to the defendant that no exception thereto was taken. The only error assigned being the refusal of the court to give binding instructions in favor of the defendant the testimony must not only be read in the light most advantageous to the plaintiffs, all conflicts therein being resolved in their favor, but they must be given the benefit of every fact and inference of fact, pertaining to the issues involved, which may reasonably be deduced from the evidence: Uhler v. Jones, 78 Pa. Super. 313; Mountain v. American Window Glass Co., 263 Pa. 181. No matter how strong the oral evidence produced by the defendant, exculpating it from liability, since its weight depends upon the credibility of the witnesses it must be submitted to the jury: Shaughnessy v. Director General of Railroads, 274 Pa. 413; Kent, Admr. v. General Chemical Co., 285 Pa. 34. Applying these principles in the present case, the evidence would have warranted a finding that a horse drawn ice wagon driven by an employe of the
defendant in the course of its business, was proceeding at a rapid rate along a highway upon which there was considerable traffic. The minor plaintiff and another boy, each about seven years of age, had climbed upon the step at the rear of the vehicle and the driver, knowing that the boys were there, called to them saying, "Get the hell off" and lashed the sides of the vehicle with his whip, which so frightened the boys that they jumped off, but the minor plaintiff in jumping fell upon the street and was run over by a motor truck, which was following the wagon at a distance of about ten feet, and was seriously injured. In the circumstances thus disclosed the driver had the right to expel the boys from the wagon, but in exercising the right to remove them he was required to use the care that a reasonably prudent man would exercise in the circumstances. "His failure to observe such precaution in removing the child from the wagon would convict him of negligence for which his employer would be liable. The tender years of the child relieve him from any charge of negligence in entering upon the wagon": Brennan v. Merchant
Co., Inc., 205, Pa. 258; McGinnis v. Peoples Bros., 249 Pa. 335; Petrowski v. Phila. R. Ry. Co., 263 Pa. 531; Minute v. Phila. R. Ry. Co., 264 Pa. 93. The court did not err in refusing to give binding instructions in favor of the defendant and the assignment of error is overruled.
The judgments are affirmed.