| Pa. | Feb 25, 1884
delivered the opinion of the Court, October 6, 1884.
If there were no testimony from which the jury would have been justified in finding that the unfortunate injury which resulted .in the death of plaintiffs’ child was caused by the negligence of defendant company’s employees, it must be conceded the judgment of nonsuit was rightly entered, and should be sustained; but, in view of the evidence as to the tender years of the child, and the care that was exercised by his mother to keep him out of danger on the morning of the accident, it cannot, in my judgment, be sustained on any other ground. There .is nothing in the testimony to warrant the court in holding, as matter of law, that there could be no recovery either on the ground that the child’s parents were chargeable with contributory negligence, or that he, himself, was a trespasser in the sense that one of maturer years would have been under like circumstances. If there was any testimony tending to sustain either of these positions it should have been submitted, with proper instructions, to the jury.
It appears plaintiffs resided in the town of Babylon, on the line of defendant’s railroad. Their house was on a corner lot, extending back along a street running at right angles to the railroad. At the intersection of the railroad and the street there was an embankment about eight feet high, on which a flight of steps was constructed for the purpose of more convenient access from the street to the railroad. The back door of plaintiffs’ house was about ninety feet from the foot of the steps. The injury was done by a coal train, on the hind car of which two boys, about nine years of age, schoolmates of •plaintiffs’ son, were riding by permission of the brakeman. As the train approached the steps these boys beckoned to the deceased, who was then standing in the back door of his home. He immediately responded, ran out, reached the top of the steps as the hind car was passing that point, climbed on the car, and, almost immediately thereafter, in attempting to recover his hat, fell under the car and was so badly injured that he died same afternoon. There was no material conflict of testimony. The witnesses disagreed as to whether the boy
It does not appear that there was anything unusual in the management of the train. It must have been running very slowly, or a boy under six years of age could not have climbed on the car while it was in motion. It is said the brakeman, who was sitting on the bumper at the front end of the hind ear, should have prevented the boy from getting on the car, or have taken care of him when he was there. To this it may be replied that the brakeman had his duties to attend to, and was in a position where he could promptly apply the brake when necessary; and, moreover, there is not a particle of testimony tending to show that he saw the boy, or had any reason to suppose he was on or near the train. If he gave the other boys permission to ride on the ear he transcended his authority, and did'a very imprudent and improper act; but it so happened that no harm befell either of them.
A careful consideration of the testimony', in the light of the able and elaborate argument of the learned counsel for plaintiffs, fails to discover anything in the case that would have warranted the jury in saying that the unfortunate boy was injured by reason of the negligence of the railroad company or any of its employees. This being so, it follows that there was no error in entering the judgment.
Judgment affirmed.