Zimmerman Et Ux. v. Younker , 1924 Pa. Super. LEXIS 207 ( 1924 )

Argued April 22, 1924. The verdict determines that plaintiffs' son, four years old, died of injuries resulting from defendants' negligence. The case is here on a single point; appellants contend that, as matter of law, the parents' contributory negligence bars recovery. The jury was instructed on the subject and appellants find no fault with the instructions, but insist the matter was not for the jury.

Giving the plaintiffs the benefit of the inferences from the evidence and favorable to them, and rejecting all others, we have the following: the boy's mother was engaged in doing her own housework, having no one else to do it for her, when her brother, aged eleven, appeared and asked permission to take her four-year-old son to a neighbor's to see some pets; the mother dressed the child for the purpose and permitted him to go; the uncle had taken him out before. After an absence of about forty minutes, the uncle returned without the nephew and informed the mother that the nephew was with a little girl, getting a piece of ice from an ice wagon. She immediately went in pursuit of him but before reaching the street, learned he had been struck. The chauffeur saw a group of children, including the boy, "three or four hundred feet" ahead of him, and saw the boy one hundred feet away before reaching the place of the accident; the boy was then standing on the curb; a passenger in the automobile also saw him there; at that time he was standing with other children on the sidewalk. Another witness saw the boy leave the sidewalk to cross the street when the automobile was twenty-five feet away.

Appellants' position is that the selection of the caretaker and his conduct in going home and leaving the child on the street or sidewalk with other children, was such negligence as to bar recovery by the parents. In Railway Co. v. Pearson, 72 Pa. 169, it appeared that an eighteen-months-old child generally in the custody of its sister, twelve years old, escaped from the sister, and while playing with a seven-year-old child, who had been in the habit of playing with it, ran across a railroad track and was injured. Concerning the seven-year-old custodian the court said: "Now, whether Lizzie Orr was a competent protector, whether the parents ought to have been satisfied when informed that he was with her, were questions for the jury......" That rule has been approved in succeeding cases, some of which are cited in McKinney v. R.R. Co., 247 Pa. 217, and determines this appeal against appellants. The cases relied on by appellants, in which it appeared that parents exercised no control, or that a parent took his child to a place of danger and took no care of it (Pollack v. R.R. Co. (No. 2), 210 Pa. 634), have no application to this record.

Judgment affirmed.