Levin ex rel. Levin v. Second Avenue Traction Co. , 194 Pa. 156 ( 1899 )

Opinion by

Mr. Justice Brown,

We regret to be compelled to complain of appellants’ history of the case, as furnished to us in their paper-book. An accurate statement of the facts is helpful to us on the argument, and nothing should appear in the history of the case not justified by the evidence produced. In the case before us, a child, Dennis Levin, five years of age, got upon the step of the platform of one of the cars of the Second Avenue Traction Company, and while there, after the car had started, was seen by the motorman, who knocked on the window, and then kicked on the lower end of the closed side — the side next to the child — when the latter jumped off and fell. This is all the motorman did. Nothing more can be found in the evidence, and we must attribute to the zeal of the learned counsel for appellants the impression made upon them that the testimony of the only witness who saw what occurred was that the motorman had threateningly motioned the boy to get off. There is a material difference between the testimony and the history of the case as to what the motorman did.' We, of course, feel that it was inadvertently made, and in what we say intend nothing more than a friendly caution as to the care with which counsel should review testimony before preparing a history of the case.

Having called attention to the inaccuracies in the history of the case, we feel that under the undisputed facts it is controlled, and properly, by Pittsburg, Allegheny & Manchester Pass. Ry. Co. v. Caldwell, 74 Pa. 421, the. language of the late Justice Williams in that case being peculiarly applicable to this, and relieving us from any extended discussion of the question before us. If it had been brought to the attention of the learned trial judge in the court below, the error which we must correct would not have been committed. When the motorman discovered the boy on the platform of the car, it was his duty to stop and take him inside, or put him off. The moment the child was seen the car should have been stopped, and failure to stop it instantly became negligence. Instead of stopping and taking the boy inside or putting him off, the motorman knocked on the window and kicked on the side, manifestly frightening the little fellow, and the negligence became cruel;, but before he. knocked hr kicked, having seen the boy, there was negligence in allowing him to remain on the platform of the moving car, and the knocking and kicking simply intensified it. The youth of the boy exempted him from the charge of being a trespasser, in the legal signification of the word (Barre v. Reading City Pass. Ry. Co., 155 Pa. 170), and no negligence was imputable to him. The injury sustained resulted entirely from the negligence of the traction company, and the case should not have been taken from the jury.

Judgment reversed and procedendo awarded.