Buente v. Pittsburg, Allegheny & Manchester Traction Co.

Opinion by

Wickham, J.,

(after stating the facts as recited in the above statement of facts):

The learned judge of the court below was asked, through the defendant’s first point, to instruct the jury that there was not sufficient evidence of the defendant’s negligence to sustain a verdict for the plaintiff. We think the point was properly refused. Although the evidence of negligence was not very strong, there was enough to justify submitting the case; it was for the jury to say whether the motorman, with an unobstructed view of the street in front, should have confined his attention entirely to the one child on his left, and also whether running a car at the rate of ten miles an hour, if that were the speed, at a place where the street was crowded with children was not negligence in itself. Either or both of these things might have been negligence, and may have caused the accident. The refusal to affirm the defendant’s second point was also proper. The court had no right to say that it was not the duty of a reasonably careful, prudent and vigilant motorman, having nothing to do at the time but to watch the street in front and keep his car under control, to glance from side to side, instead of keeping his eyes fixed on one child, to the exclusion of the many others on the street. A motorman “ should always be on the alert,” Schnur v. Citizens’ Traction Co., 153 Pa. 29, and especially so when passing a schoolhouse out of which has just come a large body of children, enjoying their liberty in the careless manner that is usual to them when released from school.

Nor was the defendant entitled to an affirmance of its third or fourth points, which allege such contributory negligence on the part of the plaintiff as should prevent a recovery. The matter of contributory negligence of parents, under circumstances very similar to those shown by the evidence in the present case, is fully discussed in Henne v. Railway Company, 1 Pa. Superior Ct. 311. On the authority of that case and the Supreme Court decisions therein cited, we feel free to say that to have taken the question of contributory negligence from the jury would have been manifest error. From what is said above, it will also appear that the defendant’s fifth point, asking the court to direct a verdict against the plaintiff, was likewise properly refused.

In the language quoted from the charge in the sixth assignment of error, the learned judge of the court below indicated a higher measure of duty on the part of the defendant, regarding the character of pilots, fenders and like devices to be used on its ears, than is required in Pennsylvania. The general rule, equally applicable to spark arresters, pilots, fenders and other devices intended to promote the safety of persons and property, whether used on steam or street railways, is briefly stated in Henderson v. Railway Company, 144 Pa. 461, as follows: “ It is the duty of railway companies to adopt the best precautions against danger in general use and which experience has shown to be superior and effectual, and to avail themselves of every such known safeguard or generally approved invention, to lessen the danger.” In 3 Wood on Railroads, 1578, the author says: “This rule does not require the company to use any appliances which have not been tested, although approved by the highest scientific authorities, but requires only the use of those which have been tested and put into general use.” In the case in hand the jury were told “ or if without any special use or general use, their common sense would teach them that there was a better appliance they ought to adopt it, because people are expected to use ordinary sense, good prudence, care and caution. If they fail to adopt anything that a public use has indicated as being proper, or which their own common sense, if applied, would teach them was proper and reasonably necessary, then their failure to adopt that is negligence.” The effect of this instruction was to abolish the rule above mentioned and put in its place an indefinite and uncertain standard. There might be in the minds of the jury a dozen different ideas of what constitutes common sense, as applicable to the subject-matter, and each juror would likely feel like insisting that his common sense was the common sense that should have been possessed and acted upon by the company.

That part of the charge of the court, set forth in the seventh assignment of error, is characterized by the same mistaken view of the law, — the court submitting to the jury the question, whether it was not negligence on the part of the defendant not to adopt proposed inventions, not then in general use and indeed only existing in the experimental stage.

We are satisfied, too, that the city ordinance, referred to in the eighth and last assignment of error was improperly admitted in evidence. It requires that all passenger railway companies shall be provided with “ the most improved, modern pilot or safety guard.” This, as has already been explained is an attempt to establish a higher measure of duty than the law fixes.

As between the plaintiff and the defendant company the ordinance cannot be invoked to create a higher standard of care than is fixed by the law of the land. Ordinances regulating the speed of trains and street railway cars stand on a different footing, for the reason that the law fixes no rate of speed, and therefore unless clearly unreasonable, have been admitted in evidence where the negligence charged was too rapid running. In this case however the ordinance was entirely irrelevant. If there were an issue as to the sufficiency of the fender in use on the car, the ordinance could throw no light on that question. There was no dispute as to the fact that there was a fender on the car, nor could there be any as to the duty of the defendant to have one there. Whatever may have been the purpose of admitting the ordinance in evidence, its only effect, if it had any, was to prejudice the defendant’s case with the jury, by suggesting to them a different and greater measure of duty in regard to the selection and use of fenders than the law establishes. We deem it proper also to say here that there was no evidence tending to meet and overthrow that offered by the defendant to show that the plank fender or guard employed on the car that killed the child was the best in general use at that time. The fact that the defendant company, and perhaps others, were then and had been for a short time before experimenting with what is called the “ Crawford guard,” which later, through compulsion of the city authorities, was adopted, did not disprove the uncontradicted testimony of John S. Irwin, the defendant’s witness, on this point.

The sixth, seventh and eighth assignments of error are sustained.

The judgment is reversed and a venire facias de novo awarded.