Wrasse v. Citizens Traction Co. , 146 Pa. 417 ( 1892 )

Opinion,

Me. Cheek Justice Paxson :

The plaintiff, a boy of about ten years of age, was injured by the car of the defendant company, and this suit was brought in the court below by his father, as his next friend, to recover damages for such injury. The only specification of error which we think it necessary to discuss, is the second, in which it is alleged that the court erred in refusing the defendant’s second point. The point is as follows: “ There is no sufficient proof that the injuries complained of were caused by the defendant’s negligence, and the verdict must be for the defendant.” This point raises the whole issue of fact in the case, and renders necessary a consideration of the evidence.

The following, briefly stated, is the plaintiff’s account of the transaction as detailed by him on the witness stand:

On July 11,1888, he was carrying water for Booth & Flynn, contractors, near Hiland Avenue, East Liberty. While standing there, a car of the defendant company passed, and he heard some one say, “ Hello, Kid, the driver wants you; ” whereupon he went over to the car with his bucket of water. Then some man took his bucket and put it on the car, after which the same man took the boy under the arm, and lifted him on the car on the front platform. There were several other persobs' on 'the platform at the time, including two children, who took a drink of water out of his bucket. After he got on the platform, the car moved on fast for about half a square, when it came • to a switch which made a jolt, and some man tumbled against or bumped him, and he fell off; the wheel ran over his leg, and injured it so that it had to be amputated. He was repeatedly asked whether he had been told to get off by the driver before the accident occurred, and he either denied it, or said he did not know. He further stated that the driver saw him when he was taken on the car. This was his statement when on the stand. Two witnesses, Otto Shonert and John F. Lawler, called by the defendant, testified that when the boy was taken home, and when he was resting and free from pain, he said, in answer to an inquiry by the witness how the accident occurred, that it was not the fault of the driver, that it was his own fault; that “ he jumped off, and ran against some person, and it throwed him under.” There was no attempt to contradict this testimony by the plaintiff himself, or by any one else. That this statement, made by the boy almost immediately after the accident, was the true version of the matter, appears conclusively by the evidence of all the other witnesses who were examined and had any knowledge of the matter, including those of the plaintiff himself.

Confining ourselves to the witnesses called by the plaintiff, it appears that before the car moved from the corner of Penn and Frankstown Avenues, and while it stood still at that place, the driver not only told the plaintiff three or four times to get off the car, but once or twice caught hold of him and actually put him off. Louis Hensel, his own witness, says the driver chased him off three times. This witness was on the front platform at the time the accident occurred, and thus describes it: “ He asked me to hold his bucket, and I held his bucket. He says, I want to get off here. I says, Look out so you don’t fall, I says that, and he says, I am going to get off here, will you please hold my bucket ? I says, Yes, I will hold your bucket, and he jumped off, and jumped off backwards and stumbled, and by turning again he got his leg right under the car.” The same witness testified that the boy was on the rear platform, when the driver repeatedly ordered him off at Penn and Franks-town Avenues. He further stated that when the car started, he (witness) told, him to get off. The plaintiff replied: “ I am going to ride down as far as the blacksmith shop, and then I am going to get off. I want to fill my bucket again.” Continuing, the witness says: “ The driver says the same thing, Get off there! He says, I am going to ride down as far as the blacksmith shop; and while the driver stopped to let some passengers on, he thought the boy was off, and drove on; never looked at the boy. I don’t think he knew the boy was on.” And again he says: “ I don’t think the driver knew; the driver turned around and looked after his passengers.” There was need that he should do so. His car was crowded, mostly with women and children, and the driver could not give his whole attention, there being no conductor, to a boy who had repeatedly within a few minutes been not only warned off but-put off the car. There is no reliable evidence that the driver knew the boy was on the car when the accident occurred. Such evidence as there was was inferential merely. The boy was told to get off by the driver, when the car stopped to take on passengers, and the driver may well have supposed he had obeyed the order, when he again started the car. It is needless to further repeat testimony.

Where was the negligence? “The negligence complained of was allowing the plaintiff to be placed on the front platform of the car at Collins Avenue, and to ride on that platform from that avenue down to the blacksmith shop where he was hurt, a distance of five hundred yards occupying on the way fifteen minutes of time.” See plaintiff’s argument at page 5. Pittsburgh Ry. Co. v. Caldwell, 74 Pa. 421, was cited as conclusive upon this question. But the fact is overlooked that the cases are as wide apart as the poles, upon the facts. There, the plaintiff was a child of five years of age, and was permitted by the conductor to ride upon the front platform. The child, of its own motion, jumped off and was injured; and this court very properly held that it was negligence on the part of the driver to allow a child of such tender years to ride on the platform. Here a boy of ten years of age—and many boys of that age know more about getting on and off a horse car than men of sevent}"—was stealing a ride, and had been repeatedly warned off and put off by the driver. He appeared to have done all that could be expected, in view of the crowded condition of his car. He had duties to perform to other passengers, and there is not even a scintilla of evidence that he consented to the boy being on the car. The evidence of the plaintiff amounts at most to a scintilla. He is contradicted by his own witnesses and by himself. To allow him to recover under such circumstances would be a mockery of justice. The defendant’s second and fifth points should have been affirmed.

Judgment reversed.

On March 28, 1892, plaintiff’s counsel filed a petition calling attention to certain testimony claimed to establish negligence on the part of the driver of the car; and, averring that the record still remained in the Supreme Court, and that, while under § 2, act of March 27, 1713, P. L. 76, (see Fries v. Railroad Co., 98 Pa. 142,) plaintiff might bring another action within one year from date of the judgment of reversal, yet considerable costs had accrued on the case, which should abide the result of final litigation, prayed for a new venire.

On March 28, 1892, the motion for a venire de novo was refused : Per Curiam.