Westerberg v. Kinzua etc. R.

142 Pa. 471 | Pennsylvania Court of Common Pleas, McKean County | 1891

Per Curiam:

Much as we deplore the sad accident by which the plaintiffs two children were killed, we cannot say the court below erred in entering a judgment of nonsuit. The children referred to, both of tender years, accompanied by an elder sister of about fourteen, had been out to the woods to gather flowers. Upon their return, they were walking upon the railroad track, when a loaded coal-car, which had broken loose from the train, came down the road, struck the two younger children, and inflicted injuries of which they died.

If we concede there was negligence on the part of the company, in permitting the car to become detached and run down the road without any one to control it, the fact remains that the children were walking upon the track, and, while they could not be charged with contributory negligence, by reason of their tender years, this suit is brought by their parents, who may be properly so charged. A parent owes a reasonable duty of protection to his children, and cannot cast the whole of that duty upon strangers. If he permits them, when of tender years, to wander off in places of known danger, and by reason thereof an accident occurs to them, he has no just claim to make others bear the consequences of his own neglect. We have a number of cases in which this principle has been enforced. In Phila. etc. R. Co. v. Hummell, 44 Pa. 375, it was said that children of a tender age cannot be upon a railroad track without a culpable violation of duty by their parents or guardians. In Phila. etc. R. Co. v. Long, 75 Pa. 257, it was said by Ageev, C. J.: “ To suffer a child to wander in the street has the sense of permit. If such permission or sufferance exist, it is negligence.” To the same point is Cauley v. Railway Co., 95 Pa. 398; and see, also, Gillespie v. McGowan, 100 Pa. 144. Hydraulic Works Co. v. Orr, 83 Pa. 332, was much relied upon bj plaintiffs, but is not in point. In that case the child was injured by the fall of a heavy platform, which, when not in use, rested in an upright position against a wall, yet so evenly balanced as to fall down with a slight touch. It was designated as a “ dangerous trap,” in the opinion of the court. Neither the children nor their parents had anything to put them on their guard against this danger. But the track of a railroad is always a place of danger, and is known to be such by every one. Aside from this, Hydraulic Works Co. v. Orr, as was said in Gillespie v. McGowan, supra, “ is authority only for its own facts.”

It was contended, however, that one of the children was killed at a crossing, and that as to the one so killed a different rule is applicable. We need not discuss this proposition, as the evidence for the plaintiffs clearly shows that the children were walking upon the track, and were killed, not at a crossing, but between two crossings. We have examined the evidence with care, and it'does not sustain the plaintiffs’ contention. Their own witnesses, who saw the transaction, are clear upon this point. The only fact from which a contrary inference was sought to be drawn was that some blood was found at or near the crossing. This was not sufficient to overcome the clear proof of several witnesses for the plaintiffs, two of whom were their own children. It was not enough to submit to a jury. It was but a scintilla, and the day is past for allowing or sustaining verdicts upon a mere scintilla.

Judgment affirmed.