Hestonville Passenger Railway Co. v. Connell ( 1879 )

Mi’. Justice Gordon

delivered the opinion of the court, February 17th 1879.

As we gather from the evidence and from the statements of counsel, on the 3d day of March 1877 at about 11 o’clock, a.'m., as the car of the defendant below, was passing along Lancaster avenue, between Fifty and Fifty-first streets, William Connell, the plaintiff, a child of six years and nine months of age, in attempting to jump or climb upon the forward platform, slipped, fell and received the injury complained of by the ear passing over him. 'This was a ónehorse reversible car, having both platforms unenclosed, as is customary with such vehicles, and was in charge of but'one person, who acted both as driver and conductor. The car was going slowly, and the driver was, at the time of the accident, engaged upon the rear platform and did not observe the child until after it- was hurt. There is, therefore, no doubt that the accident, resulted directly from the plaintiff’s own trespass, and, young as he was, had the damage resulted to the defendant’s property instead of to the plaintiff’s person, he would have been answerable therefor: McGee v. Willing, 31 Leg. Int. 37, per Shakswood, J. True, this rule is not based on any supposed discretionary ability on part of the infant, but rather upon the principle that every one is liable, in a civil suit, for any damage he may occasion though the act producing it may have been unintentional or even accidental. Hence, it is, that though an infant may be responsible for its trespass, yet, ordinarily, negligence cannot be imputed to one so young as the plaintiff, since but little can be predicated of its intelligence or discretion; nevertheless, it may be assumed that a child, old enough to be trusted to run at large, has wit enough to avoid ordinary danger, and so persons who have business on the streets may reasonably conclude that such an one will not voluntarily thrust itself under the feet of his horses or under the wheels of his carriage, a fortiori, may they conclude that they are not to provide against possible damages that may result to the infant from its own wilful trespass ? All this, however, bears only on the inquiry concerning the defendant’s negligence; concurrent negligence in one of the plaintiff’s age being out of the question; hence our investigation is confined to the conduct of the defendants’ employee and the character of the vehicle used, for, upon these, the court below allowed the case to turn. It was left as a question of fact to the jury, whether the want of a .fender on the front platform, and the absence of the driver from the forward part of the car, was, under the circumstances, negligence. Prima facie, there was neglect in neither of these things. The road, designed as it w'as, for the accommodation of suburban parts of the city where the travel is limited, could not have first class appointments ; it must be run cheaply or not at all; hence its cars were drawn by single horses and supervised by single persons, and as they wei-e used without turn-tables, their platforms must of necessity be open.

In all,this there was nothing either unlawful or dangerous. The remaining question is, what misuse was there of these lawful appliances and arrangements, from which a presumption of negligence might be raised ? If, as in the case of the Railway Co. v. Hassard, 25 P. F. Smith 367, improper use had been made of the open platform by permitting the child to leave it whilst the car was in motion, or had it been in the car and had the driver neglected any duty in respect to it, in either case, a question of negligence would have been raised which, properly, could bo determined only by a jury. This, however, is not the question here presented; it is, rather, whether this company was bound to the use of extraordinary care for the sole purpose of preventing injury to trespassing children. It is not a case of mere negligence on the child’s part, as if it had been run over whilst crossing or playing in the street; that would raise a question very different from the one in hand. The accident here complained of could not have happened but by the direct act of the plaintiff in his sudden and improper attemut to board the car, and this when the car was moving slowly and when the driver had no reason to anticipate danger to any one, young or old. Certainly this one-horse street-car, moving quietly along the open avenue, was not in itself an object of such a character as to awaken the slightest alarm or apprehension in the mind of any one, however cautious, and therefore called for no more than ordinary care in its management. It is hence manifest that this accident occurred not because of any defect in the vehicle, nor from the neglect of the person who had charge of it, but from the sudden and unanticipated act of the child itself, which could neither be foreseen nor guarded against, and it is a fact that the thoughtless impulse of a child may bring about an accident for which even a railroad company will not be held liable: Philadelphia and Reading Railroad Co. v. Spearen, 11 Wright 300.

The mistake, in the present case, was in' assuming that the proximate cause of the injury complained of might be found in the structure or management of the car, whereas, as we have shown, the car itself was properly constructed and it was properly used in the ordinary and customary manner, and had the plaintiff not attempted to board it in a rash and unexpected manner no harm would or could have occurred.

This case is, in fact, but a repetition of the one above cited, and the accident was one resulting from childish'indiscretion alone, and for it the defendant is not responsible.

Judgment reversed