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

Mr. Justice Trunkey

delivered the opinion of the court, February 2d 1880.

Previous to the accident which caused the death of the plaintiff’s son, he and older boys had been in the habit of supplying with water to drink, the drivers and conductors, who encouraged them to do this by giving them pennies. At the time, the plaintiff’s child was at the defendant’s cars for .that purpose. The plaintiff not only had knowledge of this habit, which began before the summer vacation of the public school and was continued in the vacation, but she permitted it. She saw the money her child made, furnished him with cup and pitcher, and cautioned him to be careful in getting on and off the cars.

The child was not seven years of age. He was incapable of negligence, and could not use the care required of a mature person under like circumstances. His business was with the defendant’s employees — to give them water and receive a reward. This is not the case of a child having occasion to cross the track in going to school, or for other purpose; nor of one that had wandered into the street without the parent’s knowledge; nor even of one permitted to play on the street. If it be that the plaintiff’s testimony warrants an inference of negligence by the defendants, because their drivers and conductors encouraged this child with others to furnish them water, the admitted fact that the child’s act was with the plaintiff’s permission, authorized the judgment of nonsuit, for the reason given by the learned judge of the Common Pleas.

The argument of counsel certainly is ingenious in support of his proposition, that “the negligence of the statutory plaintiff, arising from knowledge or direct act, cannot preclude recovery where there has been no contributory, negligence on the part of deceased.” However, this is not an open.question. In Smith v. O’Connor, 12 Wright 218, it was held, that it is not unjust to require a defendant to answer for the mischief done by his wrongful conduct, in favor of one who was not in concurrent fault; and that an infant seven years old could not be in such fault. This was in reference to an action by the infant himself, and, respecting an action by a father for an injury to his infant son, Strong, J., said: “In such a case, it may be that the father should be treated as a concurrent wrongdoer. The evidence may reveal him such. His own fault may have contributed as much to the injury of the child, and consequently to the loss of services due him, as did the fault of the defendant. He owes to the child protection. It is his duty to shield it from danger, and his duty is the greater, the more helpless and indiscreet the child is. If by his own carelessness, his neglect of the duty of protection, he contributes to his own loss of the child’s services, he may be said to be in pari delicto with a negligent defendant.” These remarks were pertinent to the point decided in Glassey v. Railroad Co., 7 P. F. Smith 172, that a father cannot recover for an injury to his infant son, which was partly caused by his own imprudent act in failure to perform his .paternal duty; and it makes no difference whether the injury of which he complains, was to his absolute or relative rights. Referring to that case, the present Chief Justice said, it very properly settled, “ that if the parents permit a child of tender years to run at large without a protector, in a city traversed constantly by cars and other vehicles, they fail in the performance of their duties, and are guilty of such negligence as precludes them from a recovery of damages for any injury resulting therefrom. If the case is barely such, the negligence is a conclusion of law, and ought not to be submitted to the determination of the jury :” Railway Co. v. Pearson and Wife, 22 P. F. Smith 169. The principle was repeated in Railroad Co. v. Long and Wife, 25 P. F. Smith 257, where it was said: “To suffer a child to wander on the street has the sense of permit." If such permission or sufferance exist, it is negligence.”

Most frequently, in trials, the question whether there was reasonable care on the part of the parent is a fact for the jury ; but where the testimony of the plaintiff directly shows his contributory negligence, it is the duty of the court to pronounce the law.

Judgment affirmed.