Glassey v. Hestonville, Mantua & Fairmount Passenger Railway Co. , 1868 Pa. LEXIS 83 ( 1868 )

The opinion of the court was delivered, by

Strong, J.

In Smith v. O’Connor, 12 Wright 223, we said that when an action is brought by a father for an injury to his infant son, it may be that the father should be treated as a concurrent wrongdoer. The evidence may reveal him as such. His own fault may have contributed as much to the injury of the child, and consequently to the loss of service due him, as did the fault of the defendant. He owes to the child protection. It is his duty to shield it from danger, and his duty is the greater, the more helpless and indiscreet the child is. If by his own carelessness, his neglect of the duty of protection, he contributes to his own loss of the child’s services, he maybe said to be in pari delicto with a negligent defendant. We hold such to be the law. Though an infant of tender years may recover against a wrongdoer for an injury which was partly caused by his own imprudent act, an adult father cannot. And it makes no difference whether the injury of which he complains was to his absolute, or to his relative rights.

Protection then being a paternal duty, entire failure to extend it must be negligence. Generally what is and what is not negligence is a question for a jury. When' the standard of duty is a shifting one, a jury must determine what it is as well as find whether it has been complied with. Not so when the law determines precisely what the extent of duty is, and there has been no performance at all. Now it would be strange were we not to hold that knowingly to permit a child less than four years old to run at large and without any protector, in the public streets of a large city, traversed constantly by railway cars and other vehicles, is not a breach of parental duty. A father has no right to expose his child to such dangers, and if he does, he fails in performance of his duty, and is guilty of negligence. The security of the community, and especially of children, demands the assertion of this doctrine. Nor is it novel. It has several times been avowed in the courts of New York and Massachusetts, and it is so reasonable that it commends itself to universal acceptance. The points submitted to the court below should therefore have been affirmed. They were abstract, it is true, but they were applicable to this case if the jury found the facts as they might have found them.

Judgment reversed, and a venire de novo awarded.