Henne v. Peoples' Street Railway Co. , 1896 Pa. Super. LEXIS 164 ( 1896 )

Opinion by

Willard, J.,

Cases involving the question of negligence depend upon and must be governed by the peculiar facts in each particular case. In many cases under undisputed facts it is the duty of the court to declare the law without reference to a jury, while in others it is for the jury, under the direction of the court, to determine whether actionable negligence has been proved or not. The first question submitted to the jury by the learned judge in the court below was whether the appellant was guilty of negligence. The evidence on the part of the appellant was that while the motorman was attending to his duties and observing the track before him the child of appellee suddenly darted (from behind a pile of building material placed upon the street) upon the track unobserved by the motorman and so close to the moving car that he was unable to stop it, and the child was unavoidably run over and killed. The testimony on the part of the appellee showed that the motorman, at the time of the accident and immediately before, was engaged in conversation with a person in the cab occupied by the motorman; that this person obstructed the view from the cab at the window on the side of the track where the child was killed. The child was also seen by another witness on the side of the track in full view from forty (40) to sixty (60) feet in front of the car immediately before the accident. It was also proved that the car was actually stopped within ten (10) feet from the time of the application of the brakes. Under this testimony the question of appellant’s negligence was properly, fairly and impartially submitted to the jury, and by their verdict they established the fact that the cab of the motorman is a place provided by his employers for him alone; where it is his duty to observe the track and all obstructions thereon; that talking and laughing with such persons, when he should have been attending to his duties with his eye upon the track, was inexcusable negligence resulting in the crushing out of a human life for which the appellant is liable to respond in damages.

The second question raised by the record is whether the judge erred in submitting the question of contributory negligence on the part of appellee to the jury. The child killed by appellant’s car was two years and three months old at the time of the accident. A short time before she was at her father’s table eating dinner with the family. The appellee was engaged as a laborer in a brewery at moderate wages. Before the child left the table the father finished his dinner, passed out of the house through his back yard by a back gate to his place of work at the brewery. As he passed out he secured and fastened this gate with a rope used for that purpose. About the time he arrived at the brewery he was informed by a messenger that his child was dead. Soon after the father left the house the mother assisted the child down from the table and went upstairs to get some clothes for the child for the purpose of dressing her to take her out. When the mother went upstairs she left the child in the room with the mother’s sister, who was in charge of a younger child of the appellee. In the kitchen, between the dining room where the child was left and the back yard, was a hired girl. The mother remained upstairs about three (3) minutes and on her return with the child’s clothes she found her gone; she could not find her in the house, went to the back yard and found the gate open; she went out of this gate through a court and along Seventh street to the street car track on West Lackawanna avenue and arrived there just at the instant her child was killed.

These, facts, thus stated nearly in the language of appellant’s counsel, do not establish a case of parents allowing or permitting a child of tender years to stray upon the public streets unattended. The most that can be said of this case is that, governed by a childish impulse, this child, two years and three months old, suddenly left her father’s house and by a strange fatality placed herself upon this railroad track, and through the inattention and carelessness of the person in charge of the car the child was killed. There is no rule of human conduct that called upon that mother to keep a constant eye upon the child in her own house, nor was she called upon (as her husband was circumstanced) to hire a person to do so for her. Neither was she nor her husband obliged to stand at the back gate and see that no one untied its fastenings, nor were they obliged to place a sentinel at the gate. Under all the evidence and circumstances of the case it would have been manifest error for the court to have refused to submit the question of contributory negligence on the part of the appellee to the jury. The case of Johnson v. Railway, 160 Pa. 647, does not rule this ease. There, a child twenty (20) months old was allowed to pass out through the front door past its mother, through the front yard, over the sidewalk onto a railroad track immediately in front of the house before the face and eyes of its mother, without notice on her part, where it was. killed in her presence and view. After reciting the facts of the case at bar it is sufficient to say that that case in no way resembles this. There, the negligence of the parent was self evident; here, in our opinion, there was nothing in the care of this child that amounted to negligence on the part of its parents. At all events the question was fairly submitted to the jury, and under proper -instructions as to the law they found that there was no want of reasonable care for this child on the part of her parents. To have done otherwise, on the part of the court below, and to have held as a matter of law that the parents were guilty of contributory negligence, would have been carrying the contention of the appellant beyond any reasonable limit heretofore prescribed as the correct rule by the decision of any appellate court to which our attention has been directed. The disposition of the case in the court below is fully sustained in Philadelphia & Reading Railroad Company v. Long and Wife, 75 Pa. 257; Pennsylvania Company v. Jones and Wife, 81* Pa. 194; Schnur v. Citizens’ Traction Company, 153 Pa. 29; Dunseath and Wife v. Pittsburg, Allegheny & Manchester Traction Company, 161 Pa. 124. The specifications of error are overruled and judgment affirmed.