Dunseath v. Pittsburg, Allegheny & Manchester Traction Co. , 34 W.N.C. 381 ( 1894 )

Opinion by

Mr. Justice McCollum,

This is an action by parents to recover the money value of their child’s life which they allege was taken on the 22d of February, 1892, through the negligence of the appellant company in running its car at an unusual and dangerous rate of speed, and without giving proper signals, at or near the intersection of Franklin and Bidwell streets in Allegheny City. The trial in the court below resulted in a verdict in favor of the plaintiffs for $699. If there was evidence sufficient to justify a finding that the boy’s death was caused by the negligence of the appellant company, and the learned court below did not err in refusing to hold that the negligence of the parents contributed thereto, the company cannot reasonably complain of the verdict, because the amount of it does not indicate that the jury were affected by sympathy or prejudice in rendering it. In a clear and concise charge the learned judge carefully limited the jury to such matters as were proper for their consideration in ascertaining the damages, and the verdict in this particular fairly conformed to the instructions. We turn, then, the evidence to see if it was sufficient to support the plaintiff’s contention that the death of their child was due, wholly or partially, to the company’s negligence, and if we conclude that it was, to inquire whether there was anything in it which would have justified the learned judge in holding that their own negligence in caring for the child was responsible in some degree for the sad occurrence.

It appears from the evidence produced by the plaintiffs that at the time of the accident the car was running at a high rate of speed and that the brake was not applied to check its progress nor the bell rung to give notice of its approach, until the boy was struck by it. Mrs. Hartman testified that she was standing about twenty-five feet from the place where he was struck, and that when she first saw the car it was a square and a half away from her, and “coming very fast;” that the brake was applied and the bell rung after, but not before, he was struck. In her statement respecting the speed of the car and the ringing of the bell she was fully corroborated by the testimony of M. C. Golden and Mrs. Owsten. The latter said: “ I saw the car coming down very rapidly, as though it had broke away or something; it looked to me like it had broke away and was uncontrollable, the way it went.” These witnesses either resided upon or in plain view of the street on which the railway track was located, and were accustomed to seeing the cars running upon it; the speed of this car was so great that their attention was particularly attracted by it before the occurrence of the accident, and it ran about thirty-five feet after the boy was struck by it before it could be stopped. Their testimony in relation to the speed of the car and the distance it ran after the boy was struck by it was corroborated by that of McClelland, the company’s only witness, who testified, inter alia, that he was standing in the car and saw the accident; that it was crowded and “ seemed to be going pretty rapidly, eight or nine miles an hour; ” that it struck the boy at or near the crossing and that after it struck him it “ slid along thirty-five feet ” before the motorman could stop it. Surely this evidence authorized an inference that the car was running at an unusual and dangerous rate of speed at the time of the accident, and required that the question of the company’s negligence in connection with it should be submitted to the jury.

We cannot assent to the proposition that the court should have taken the case from the jury on the ground that the presence of the boy on the street, under the circumstances shown, constituted negligence on the part of the plaintiffs which contributed to his death. It is contended by the appellant company that the boy was on the street by permission of his parents, or that they failed to take proper precautions to prevent his going there, and it bases its contention in this particular on the testimony of his mother and Miss Algeo. It is not necessary to include their testimony or any portion of it in this opinion. We have carefully read and considered the whole of it and are clearly satisfied that the question of the alleged contributory negligence of the plaintiffs was for the jury and not for the court to decide.

It seems to us that there is a striking resemblance between this case and Long et ux. v. The Philadelphia and Reading Railroad Company, 75 Pa. 257. In that case, as in this, the plaintiffs claimed that their child’s death was attributable to the , company’s negligence, while the latter contended there was no negligence on its part and that there was contributory negligence on the part of the parents. In that case Chief Justice Agnew, delivering the opinion of this court, said: “ To suffer a child to wander on the street has the sense of permit. If such permission or sufferance exist it is negligence. This is the assertion of a principle. But whether the mother did suffer the child to wander is a matter of fact and is the subject of evidence, and this must depend upon the care she took of her child. Such care must be reasonable care dependent on the circumstances. This is a fact for the jury.” The resemblance between the two cases in respect to the questions involved and .the evidence relied on to decide them is so close that the language we have quoted applies to this case with the same pertinency and force as to the case in which it was used.

The appellant company’s second point was inartifieially drawn and somewhat obscure, and as we think it admitted of a construction which assumed that there was negligence on the part of the plaintiffs which caused or contributed to the death of their child, we cannot say there was error in the answer to it.

The specifications are overruled.

Judgment affirmed.