Lafferty v. Armour & Co. , 272 Pa. 588 ( 1922 )

Opinion by

Mr. Justice Schaefer,

The court below entered a compulsory nonsuit; from the refusal to take it off, plaintiffs appeal.

The circumstances out of which the action grew are these: A two-horse wagon belonging to defendant, was being driven by one of its employees, on its business, along a street in Philadelphia. A number of boys were playing in the highway, among them, the minor plaintiff, six and a half years old. As the driver approached, one of the boys hailed him with a request for a ride; the team slowed up, the boys got in tbe wagon, and were permitted, by tbe driver, to ride for three blocks, when be turned, swung bis whip, and with an oath ordered them off. Tbe whip struck tbe minor plaintiff on tbe bead, and, in bis fright and baste in jumping off tbe wagon, bis foot caught in a chain, banging from tbe tailboard, be was dragged a considerable distance and seriously injured.

Tbe trial judge entered a compulsory nonsuit, which tbe court in banc declined to take off, bolding tbe case of Hughes v. Murdock Storage & Transfer Co., 269 Pa. 222, prevents recovery. We do not regard tbe decision in that case as controlling here. Hughes was fourteen years of age at tbe time be was injured, this plaintiff but six and a half years old. In both cases, tbe driver permitted tbe injured boy to ride on tbe vehicle; in tbe one relied on, there was no wanton or wilful act on tbe driver’s part, whereas, in tbe one we are considering, there was a most wanton and cruel act by tbe employee in charge of tbe wagon. In tbe case cited, it was said by Mr. Justice Kephart: “Tbe master, short of wantonness, did not owe him tbe duty of safe carriage or to see that be safely alighted.” It is this distinction, that there was wantonness on tbe driver’s part, in tbe present case, which takes it out of tbe control of tbe Hughes decision. Tbe difference between tbe two cases is made clear by this further expression in that opinion: “The master was under no duty to take care of tbe boy by keeping him off tbe truck, nor liability for injuries resulting from bis voluntarily leaving it.” Here, tbe boy did not voluntarily leave tbe wagon, but was driven from it by tbe assault of tbe driver. In policing bis wagon, tbe driver was performing a duty for tbe master. However tbe plaintiff came to get on tbe wagon, whether by tbe driver’s permission or as a trespasser, once on, if tbe driver, recognizing tbe duty to bis employer not to permit tbe boy to continue in tbe wagon, bad given him opportunity to alight, and in so doing, without any wanton act on the driver’s part, the boy had been injured, the Hughes case would be a controlling authority against recovery from the owner of the vehicle, but where, as here, the order to leave the wagon was accompanied by such an act as lashing the boy with a whip, the master, who by entrusting the wagon to the servant, gave him authority over persons riding upon it, must respond for the result of his wanton act. This case is ruled not by Hughes v. Murdock, but by Hyman v. Tilton, 208 Pa. 641, in which it was held that where a boy of tender years climbs upon a moving dray, and while riding thereon, the driver, without stopping and putting the child off, strikes at him with a whip, and the boy is either knocked off by the blow, or through fright falls off and is injured, the owner of the dray is liable in damages for the injuries sustained.

If the plaintiff had attempted to alight from the wagon and been injured, without any wanton act on the driver’s part, the defendant would not have been responsible. It is the driver’s inconsiderate act in putting him off, not the fact that he got on the wagon with the driver’s permission, which is the determining factor as to defendant’s responsibility for the injuries the boy sustained.

The judgment is reversed with a new venire.