Thomas v. Southern Pennsylvania Traction Co. , 270 Pa. 146 ( 1921 )

Opinion by

Mr. Justice Walling,

This suit is for the death of plaintiffs’ minor son. Defendant has a single track electric railway along the center of Third Street in the city of Chester. The street is paved and in use for general traffic by automobiles and other vehicles. On the evening of May 28, 1915, plaintiffs’ son, Gerald Thomas; eight years of age, jumped upon the rear step on the blind side of one of defendant’s cars, to have a free ride, and supported himself by grasping the iron gate which separated the step from the platform. While the car was in motion, the conductor struck the gate with his foot, or kicked it, ostensibly to frighten the boy off (at least it had that effect) and he jumped into the street, where he was struck and killed by an automobile jitney, which was moving rapidly in the opposite direction. The jitney was in full view when the boy left the car and struck him before he could clear its path.

This appeal by plaintiffs, from an order of the trial court refusing to take off a judgment of compulsory non-suit, must be sustained. Although a boy is a trespasser ■ he cannot lawfully be forced from a moving vehicle, by fright or otherwise (Petrowski v. Phila. & R. Ry. Co., 263 Pa. 531; Enright v. Railroad Co., 198 Pa. 166; Brennan v. Merchant & Co., Inc., 205 Pa. 258; Hyman v. Tilton, 208 Pa. 641; Levin v. Traction Co., 194 Pa. 156; Same v. Same, 201 Pa. 58; Pittsburgh, A. & M. Passenger Ry. Co. v. Caldwell, 74 Pa. 421), and this is emphatically true where he must land in the cartway of a city street. Here the conductor’s behavior is aggravated by the fact that he was apparently attempting to force the boy from the car in disregard of traffic upon the street. The natural and probable consequence of such act, under the circumstances disclosed by the evidence, would be personal injury to the lad; hence, that act, rather than contact with the jitney, was the proximate cause of the accident. The principle is well stated in Shearman and Redfield on Negligence, section 10, as quoted with approval in Burrell Twp. v. Uncapher, 117 Pa. 353, 363, that, “Negligence, however, may be the proximate cause of an injury of which it is not the sole or immediate cause. If the defendant’s negligence concurred with some other event (other than the plaintiff’s fault) to produce the plaintiff’s injury, so that it clearly appears that but for such negligence the injury would not have happened, and both circumstances are closely connected with the injury in the order of events, the defendant is responsible, even though his negligent act was not the nearest cause in the order of time”; and see Southern Railway Co. v. Webb, 116 Ga. 152.

The fact that the injury was caused by the joint negligence of the defendant and a stranger is, of course, no defense (Burrell Twp. v. Uncapher, supra); therefore, if the jitney driver was also at fault, which does not clearly appear, it would be no excuse here. As the accident immediately followed the jump from the car, before the boy could reach a place of safety, the jitney cannot be regarded as an independent intervening cause. In Pass. Ry. Co. v. Trich, 117 Pa. 390, it is stated, in effect, that a street car driver is not bound to anticipate so extraordinary an occurrence as a runaway team, but the passage of an automobile over a paved street in a city is to be expected.

The case is relieved of the question of contributory negligence by the tender age of the deceased.

Our conclusions of course are based entirely upon plaintiffs’ evidence.

The judgment is reversed with a procedendo.