146 Pa. 417 | Pennsylvania Court of Common Pleas, Alleghany County | 1892
Opinion,
The plaintiff, a boy of about ten years of age, was injured by the car of the defendant company, and this suit was brought in the court below by his father, as his next friend, to recover damages for such injury. The only specification of error which we think it necessary to discuss, is the second, in which it is alleged that the court erred in refusing the defendant’s second point. The point is as follows: “ There is no sufficient proof that the injuries complained of were caused by the defendant’s negligence, and the verdict must be for the defendant.” This point raises the whole issue of fact in the case, and renders necessary a consideration of the evidence.
The following, briefly stated, is the plaintiff’s account of the transaction as detailed by him on the witness stand:
On July 11,1888, he was carrying water for Booth & Flynn, contractors, near Hiland Avenue, East Liberty. While standing there, a car of the defendant company passed, and he heard some one say, “ Hello, Kid, the driver wants you; ” whereupon he went over to the car with his bucket of water. Then some man took his bucket and put it on the car, after which the same man took the boy under the arm, and lifted him on the car on the front platform. There were several other persobs'
Confining ourselves to the witnesses called by the plaintiff, it appears that before the car moved from the corner of Penn and Frankstown Avenues, and while it stood still at that place, the driver not only told the plaintiff three or four times to get off the car, but once or twice caught hold of him and actually put him off. Louis Hensel, his own witness, says the driver chased him off three times. This witness was on the front platform at the time the accident occurred, and thus describes it: “ He asked me to hold his bucket, and I held his bucket. He says, I want to get off here. I says, Look out so you don’t fall, I says that, and he says, I am going to get off here, will you please hold my bucket ? I says, Yes, I will hold your bucket, and he jumped off, and jumped off backwards and stumbled, and by turning again he got his leg right under the car.” The same witness testified that the boy was on the rear platform, when the driver repeatedly ordered him off at Penn and Franks-town Avenues. He further stated that when the car started,
Where was the negligence? “The negligence complained of was allowing the plaintiff to be placed on the front platform of the car at Collins Avenue, and to ride on that platform from that avenue down to the blacksmith shop where he was hurt, a distance of five hundred yards occupying on the way fifteen minutes of time.” See plaintiff’s argument at page 5. Pittsburgh Ry. Co. v. Caldwell, 74 Pa. 421, was cited as conclusive upon this question. But the fact is overlooked that the cases are as wide apart as the poles, upon the facts. There, the plaintiff was a child of five years of age, and was permitted by the conductor to ride upon the front platform. The child, of its own motion, jumped off and was injured; and this court very properly held that it was negligence on the part of the driver to allow a child of such tender years to ride on the platform. Here a boy of ten years of age—and many boys of that age know more about getting on and off a horse car than men of sevent}"—was stealing a ride, and had been repeatedly warned off and put off by the driver. He appeared to have done all that could be expected, in view of the crowded condition of
Judgment reversed.
On March 28, 1892, plaintiff’s counsel filed a petition calling attention to certain testimony claimed to establish negligence on the part of the driver of the car; and, averring that the record still remained in the Supreme Court, and that, while under § 2, act of March 27, 1713, P. L. 76, (see Fries v. Railroad Co., 98 Pa. 142,) plaintiff might bring another action within one year from date of the judgment of reversal, yet considerable costs had accrued on the case, which should abide the result of final litigation, prayed for a new venire.
On March 28, 1892, the motion for a venire de novo was refused : Per Curiam.