Biddle v. Hestonville, Mantua & Fairmount Passenger Railway Co.

Mr. Justice Gordon

delivered the opinion of the court, May 3d, 1886.

That the defendant’s driver, or conductor, was grossly negligent in compelling a child of twelve years of age to jump, and that backwards, from the platform of a moving car, no one can well deny. Even the boy Solnack knew better than that, and did what he could to prevent the accident. To discuss, therefore, evidence which throughout shows a reckless carelessness of which no man of ordinary discretion ought to have been guilty, would be to no purpose; hence, we may regard the case as fully disposed of when we have made a brief statement of the law which ought to have governed the court below. It was a mistake to hold that because the child was a trespasser it could therefore be ejected in a manner which endangered its life or limbs. In the case of the Pennsylvania Company v. Toomey, we held, per Mr. Justice Mercur, that such a disposition of a trespassing adult could not be allowed, and that ordinary care must be used to avoid injury even to a trespasser is fully established by the cases of the Pennsylvania Railroad Co. v. Lewis, 29 P. F. S., 33, the Hydraulic Works Co. v. Orr, 2 Norris, 332, and the Philadelphia & Reading Railroad Co. v. Hummell, 8 Wr., 375. Moreover, we have two cases which, in point, rule the contention in hand; they are the Pittsburgh, Allegheny & Manchester Passenger Railway Co. v. Caldwell, 24 P. F. S., 421, and. the same company v. Donahue, 20 Id., 119. In the first case a child had been permitted by the' clriver to ride upon the front platform, from which, without his knowledge, it attempted to leave the car whilst in motion, and was injured ; in the second the child was pushed or knocked from the platform by the driver, and in each case the company was held liable for the resulting injuries. Both children here mentioned were trespassers, for although, in the first case, the child was on the car by invitation of the driver, yet as he had no authority to give such invitation, according to the case of Duff v. The Allegheny Railroad Co., 10 Norris, 458, it was but a- trespasser. It is very true, as was held in the Hestonville Passenger Railway Co. v. Connell, 7 Norris, 522, and the Philadelphia & Reading Railroad Co. v. Hummell, extra precautions are not required in anticipation of the intrusions of trespassers, even though they be children, but when they do so intrude and are known to be in an improper place, they must not be so wholly neglected as to endanger their lives or limbs. Any other doctrine would so illy accord with Christian civilization as to render its maintenance impossible. It follows from what we have said that the court below, instead of ordering a peremptory nonsuit, ought to have sent the case to the jury.

The judgment is reversed and a new venire ordered.