quences of his negligence to one who, in com- R. R. Co. v. Goodman, 62 Pa. 329. R. R. Co. v. Heil, 5 WEEKLY NOTES, 91. Bevans v. United States, 13 Wallace, 56. Birge v. Gardiner, 19 Conn. 507. Hydraulic Co. v. Orr, 3 WEEKLY NOTES, 552. February 17, 1879. THE COURT. gather from the evidence, and from the statements of counsel, on the third day of March, 1877, at about eleven o'clock A. M., as the car of the defendants below was passing along Lancaster Avenue, between Fiftieth and Fifty-first streets, Wiland nine months of age, in attempting to jump liam Connell, the plaintiff, a child of six years or climb upon the forward platform, slipped, fell The cases in this State have never gone so far car passing over him. This was a one-horse reand received the injury complained of, by the as to hold that children cannot be guilty of con-versible car, having both platforms uninclosed, tributory negligence; on the contrary, children as is customary with such vehicles, and was in are held bound to exercise a certain degree of charge of but one person, who acted both as care; and where a child's "own act directly driver and conductor. The car was going slowly, brings the injury on him, while the negligence of and the driver was, at the time of the accident, defendant is only such as exposes the child to the possibility of injury, he cannot recover." Shear, & Red. Neg. § 49. R. R. Co. v. Hassard, 25 Sm. 377. engaged upon the hind platform, and did not observe the child until after it was hurt. There is, therefore, no doubt that the accident resulted directly from the plaintiff's own trespass, and young as he was, had damage resulted to the defendants' property, instead of the plaintiff's person, he would have been answerable therefor. McGee v. Willing (31 Leg. Int. 37, per SHARSWOOD, J.) True, this rule is not based on any supposed discretionary ability on the part of the Negligence is the absence of care, according infant, but rather upon the principle that every to the circumstances. R. R. Co. v. Fries, 5 WEEKLY NOTES, 545. It is impossible for cars in the suburban districts to have the same appliances as those in the crowded parts of the city. J.J. Murphy (with him J. C. M' Caffrey), for defendant in error. one is liable in a civil suit for any damage he may occasion, though the act producing it may have been unintentional, or even accidental. Hence it is that, though an infant may be responsible for its trespass, yet ordinarily negligence cannot be imputed to one so young as the plaintiff, since but little can be predicated of his intelAny one of three precautions would have pre-ligence or discretion; nevertheless, it may be vented this accident, viz., the presence of a fen- assumed that a child old enough to be trusted to der; the driver's not leaving the front platform; run at large has wit enough to avoid ordinary or his stopping the horse before he left it. The danger, and so persons who have business on the fact that a platform is not inclosed has been de-streets may reasonably conclude that such an one cided to be an element in the question of negli-will not voluntarily thrust himself under the feet of their horses or under the wheels of their carnot to provide against possible damages that may riage; a fortiori may they conclude that they are result to the infant from his own wilful trespass. gence. R. R. Co. v. Hassard, 25 Sm. 377. It is well settled in this State that a child is only responsible for such a degree of prudence as is consistent with his years. R. R. Co. v. Caldwell, 24 Sm. 421. The law takes into consideration the nature of All this, however, bears only on the inquiry concerning the defendants' negligence, concur children, and it is an everyday practice for chil-rent negligence in one of the plaintiff's age being dren to do what this boy did. Penna. R. R. v. Kelly, 7 Casey, 372. Smith v. O'Connor, 12 Wr. 218. Rauch v. Hill, 7 Cas. 358. Crissey v. R. R. Co., 25 Sm. 85. N. P. R. R. Co. v. Mahoney, 7 Sm. 187. Phila. City P. R. R. v. Hassard, 25 Sm. 367. The fact that a person is a trespasser does not defeat the right of recovery. out of the question; hence our investigation is confined to the conduct of the defendants' employé and the character of the vehicle used, for upon these the Court below allowed the case to turn. It was left as a question of fact to the jury, whether the want of a fender on the front platform, and the absence of the driver from the forward part of the car, was, under the circumstances, negligence. Prima facie, there was This case is in fact but a repetition of the one Jan. 13, 1879. Pennsylvania Railroad Co. v. White. Negligence- Contributory negligence- When a question for the jury-Railroad companiesDuties with regard to carrying and landing passengers. When there is a reasonable doubt as to the facts or as to the inferences to be drawn from them, or when the measure of duty is ordinary and reasonable care, and the degree of care varies according to the circumstances, the question of contributory negligence is necessarily for the jury. neglect in neither of these things. The road, designed as it was for the accommodation of suburban parts of the city where the travel is limited, could not have first-class appointments: it must be run cheaply or not at all; hence its cars were drawn by single horses and supervised by single persons, and as they were used without turntables their platforms must of necessity be open. In all this there was nothing either unlawful or dangerous. The remaining question is, Jan. '78, 138. what misuse was there of these lawful appliances and arrangements from which a presumption of negligence might be raised? If, as in the case of Railway Co. v. Hassard (25 P. F. Smith, 367), improper use had been made of the open platform, by permitting the child to leave it whilst the car was in motion; or had it been in the car, and had the driver neglected any duty in respect to it, in either case a question of negligence would have been raised which properly could be determined only by a jury. This, however, is not the question here presented: it is rather, whether this company was bound to the use of A. took passage on the P. & T. R. R. for " Penn Valextraordinary care for the sole purpose of pre-ley," a station on that road. After passing the station imventing injury to trespassing children. It is not mediately preceding his destination, the conductor of the a case of mere negligence on the child's part, as train announced that the next station would be "Penn if it had been run over whilst crossing or playing Valley." As the train slowed up, A. moved to the front in the street; that would raise a question very and depot marked "Penn Valley." platform of the car, which stopped opposite a platform It was necessary to different from the one in hand. The accident cross the track to reach this platform, which was on the here complained of could not have happened but left hand side. A. stepped off the car platform and was by the direct act of the plaintiff in his sudden struck by a passing express train of the company defendand improper attempt to board the car, and this ant and instantly killed. The evidence showed that the when the car was moving slowly, and when the train had stopped in obedience to a rule of the company that trains should not pass each other at stations, that "Local driver had no reason to anticipate danger to any passenger trains will give preference to through express one, young or old. Certainly, this one-horse trains," and that the proper landing place for passengers street car, moving quietly along the open avenue, by the local train was some eighty feet beyond this point, was not in itself an object of such a character as and on the right. to awaken the slightest alarm or apprehension in the mind of any one, however cautious, and therefore called for no more than ordinary care in its management. It is, hence, manifest that this accident occurred, not because of any defect in the vehicle, nor from the neglect of the person who had charge of it, but from the sudden and unanticipated act of the child itself, which could neither be foreseen nor guarded against; and it is a fact, that the thoughtless impulse of a child may bring about an accident for which even a railroad company will not be held liable. (Philadelphia and Reading Railroad Co. v. Spearen, II Wr. 300.) Held, that the question of contributory negligence was properly submitted to the jury. Per STERRETT, J. The rule of law that persons about that the failure to do so is negligence per se, "is not to cross a railroad track must stop, look, and listen, and always applicable to passengers leaving a train and crossing the track to reach the depot at the point of destination." Error to the Common Pleas No. 4, of Philadelphia County. Case, by Phoebe White et al., the widow and children, respectively, of John White, against the Penna. Railroad Co., for negligently causing the death of the said John White. Plea, "Not guilty." The mistake in the present case was in assum- Upon the trial (before ELCOCK, J.), the foling that the proximate cause of the injury com-lowing facts appeared: On the 17th of April, plained of might be found in the structure or 1876, John W. White, accompanied by a friend, management of the car; whereas, as we have left Trenton with his dog and gun upon defendshown, the car itself was properly constructed, and it was properly used in the ordinary and customary manner, and had the plaintiff not attempted to board it in a rash and unexpected manner no harm would or could have occurred. ant's local train No. 61, for the purpose of going to Penn Valley, a station on defendant's road, to shoot. After passing the station immediately preceding Penn Valley, the conductor of the train, in accordance with an established custom [But in conformity with the rules, the train upon which decedent was, stopped at a point north of Penn Valley station, on what is termed the Philadelphia track-that is, north of the platform upon which the passengers should be landed, and opposite to another station on an of the company, announced that the next station would be Penn Valley. As soon as the train slowed up, Mr. White and his companion, being somewhat encumbered with dogs and guns, moved slowly towards the front platform, and then waited until the cars stopped, which they did immediately in front of a platform and de-adjoining track which was known as the Penn pot upon which was a large sign, "Penn Valley Station." This platform and depot was on the left-hand side of the road, and to reach it it was necessary to cross the other track. There was no evidence that the deceased actually saw the sign on the depot. White then stepped off the car, between the tracks, and was immediately struck by a passing express train of the company defendant and killed. It was in evidence that the place intended for passengers on train No. 61 to alight was a station or shed some eighty feet further along on the right-hand side of the road. The evidence as to whether White was warned, or whether he heard a warning not to get off when he did, was conflicting. The following rules and instructions of the company were put in evidence :— 99. Trains approaching stations on double track where a passenger train may be standing, receiving or discharging passengers, must be stopped before reaching the passenger train, and not go forward until the passenger train moves on, or signal, is given to come on.' "Instructions to employés, to take effect at 11 o'clock P. M., April 16th, 1876. Local passenger trains will give preference to through express trains." The Court charged the jury, inter alia, as follows: [The question here is which of the two parties to this controversy was negligent that is, whether Mr. White, the decedent (and the father and husband of the plaintiffs), or the Pennsylvania Railroad Company by its agents or servants, on this particular occasion.] Valley station, which had the sign over the door Penn Valley Station." Mr. White was therefore in this position: he had got on the train bound for Penn Valley, and the train had gone to a point near the platform upon which he was to land and at the point at which he saw "Penn Valley Station," and the train stopped. The question arises, and is for your determination solely, whether a reasonable, cautious, and prudent man would, at that point, have attempted to land in the manner in which he did. If you find that a reasonable, cautious, prudent man, under all the circumstances, would have got off at that point in the manner in which he did, then he would not be negligent.] [There may be a question whether he was induced, by reason of any invitation in the conduct of the company, to land at this particular point. You must say, if a careful, reasonable, prudent and cautious man, from the circumstance of arriving at that particular point, would be justified in landing there as his place of destination. You must also, in this connection, determine whether he was or not bound to look to the right and left to find a platform; to ascertain whether they were going forward; whether there was a platform upon that track where he could land, and whether he should not, in any event, have got off on the other side of the car. prudent for him to do? Should he have landed there, or was he, in all views of the case and under all the circumstances, justified in acting as he did? Had he a right to presume that he had reached the end of his journey, and would be justified in getting off the car?] What was The main question is whether the decedent was guilty of negligence in attempting to land or leave the train at the point and in the manner which he did. Ordinarily, it would be negligence in a man attempting to leave a train and cross a [In this connection, if Mr. White had reason track unless he had stopped, looked, and listened to presume fairly from defendant's conduct that for an approaching train. It has been very truly he had got to the end of his journey and had said that this rule of law originated and was arrived at the station, he had a right to rely upon applied to cases where people were travelling with the rule of the company which would forbid teams, etc., on highways which crossed railroads another train from passing the station while at grade, and where common prudence would his train remained there; and, therefore, the forbid any one to cross without what has been obligation to look beyond the point at which his determined ordinary caution. That rule should train had stopped was avoided. The rule must be applied in this case unless the rule of the work as well in his favor if the defendant's concompany avoided its application. The local duct led him to fairly presume he had reached train upon which the decedent was travelling, the proper station. It was a strange position for under the rules of the company could not arrive a man to be placed in. It occupied but a moment at the station when the express was approaching of time, and the whole question in the case after it, because if it had gone on to the proper all is, would a reasonable and prudent man have stopping point, it would have reached it prob- attempted to get off the train and cross the track ably at the same moment as the express and as he did, under all the circumstances?] been a breach of the rules of the company, and | The defendant requested the Court to charge: consequently negligence. R. R. Co. v. Aspell, 11 H. 151. Lewis v. London, Chatham & Dover R. W. L. R., 9 (2) If the company provided a platform for the| The calling out the name of the next station exit of passengers at Penn Valley Station," to and stopping the train was not an invitation to which the deceased was bound, it was his duty as alight at a point not the station intended for pasa passenger to leave the train by the means pro-sengers to leave the trains. vided by the company, unless a departure from the observance of this duty was justified by the most pressing exigencies, and the necessity for such departure, if it existed, must be shown by the plaintiffs, by clear and satisfactory testimony; Answer. That I affirm with the instruction have already given, that if he fairly had the right to presume the station he attempted to get out at was the station to which he was bound, why then it is a question for you to determine whether he, in the exercise of prudence and care and a reliance upon the rules of the company, got off in a proper manner and at a proper time. (3) If the deceased undertook to cross the defendant's track, it was his duty before so doing, to stop, look, and listen, and this duty was the more imperative if he alighted on the opposite side to that provided by the company. Answer. That I affirm as an abstract proposition. The Court ought not to have stated that if White supposed that he had reached the station he, therefore, had a right to rely upon the rule of the Company forbidding trains to pass at a station; this was the very point to be decided by the jury, and this statement misled them. The failure to stop, look and listen was negligence per se. R. P. White, contra. The statement that the deceased saw the name of the station could not have misled the jury. They knew that it was a mere inference which they might or might not draw from the evidence, for there was no direct testimony on the point. There being clear evidence that the defendant's agents called out the name of the next station, Rose v. N. E. Railway Co., L. R. 2 (1876–7) Ex. Bridges v. North London R. W. Co., L. R. 7 H. L. (5) The evidence showing that the deceased and that the train stopped shortly after, the ques(5) The evidence showing that the deceased tion of negligence was properly left to the jury. left the train on the wrong side, and there being no evidence of any such paramount necessity for his so doing, the plaintiffs are not entitled to recover. Answer. That I affirm, gentlemen, with what I have already stated, as to whether you can February 3, 1879. THE COURT. The facts find evidence in the case from which the plaintiff and circumstances of this case, as disclosed by would fairly infer that he had arrived at "Penn the testimony, would not have justified the Court Valley Station," for which point he was destined. below in deciding as matter of law, either that In regard to that, as I said before, you must look the deceased was chargeable with contributory to the question as to whether he was not bound negligence, or that there was not sufficient evito look for the platform and look out for ap-dence of negligence on the part of the employés proaching danger of any kind. Verdict for plaintiffs for $5000, and judgment thereon. The defendant took this writ, assigning for error the portions of the charge inclosed in brackets, and the answers to the defendant's points, as above quoted. Chapman Biddle, for plaintiff in error. There was no evidence that the deceased had seen the sign "Penn Valley Station;" it was, therefore, error to have stated it as a fact in the course of the charge. Sartwell v. Wilcox, 8 H. 123. A passenger is bound to inform himself of the regulations of the company, its stopping stations and his right to get on or off or to leave the cars; and his getting off at a point not a regular stopping station was negligence per se. Dietrich v. R. R. Co., 21 Sm. 436. R. R. Co. v. Zebe, 9 Casey, 326. Sullivan v. Phil. & Reading R. R. Co., 6 Casey, 234 R. R. Co. v. Ogier, 11 Casey, 71. The value of the affirmance of defendant's 2d point was absolutely destroyed by the qualification in the answer, for there was no evidence whatever of any "pressing exigency" requiring the deceased to leave the train as he did. of the company defendant to go to the jury. There were controverted questions of fact which it was the province of the jury to determine, and it would have been error to have withdrawn these from their consideration. Negligence has been defined to be "the absence of care according to the circumstances," and is always a question for the jury when there is reasonable doubt as to the facts, or as to the inferences to be drawn from them. When the measure of duty is ordinary and reasonable care, and the degree of care varies according to circumstances, the question of negligence is necessarily for the jury. There are, however, certain duties of a precise and determinate nature, the neglect of which the law declares negligence, per se. Thus it has been repeatedly held that it is the duty of a person about to cross a railroad track to stop, look and listen, and the failure to do so is negligence (Penna. Railroad Co. v. Beale, 23 P. F. Smith, 504; Nagle v. Allegheny Valley Railroad Co., ante, p. 510), but this rule is not always applicable to passengers leaving a train and crossing the track to reach the depot at the point of destination. There are duties which spring from the rela- | reached the proper station, and was warned not tions existing between the carrier and its pas- to alight on the left side. These were all quessengers. It is the duty of the company to provide tions of fact for the jury, and in submitting them for the safe receiving and discharging of passengers. It is bound to exercise the strictest vigilance, not only in carrying them to their distination, but also in setting them down safely, if human care and foresight can do so. (Railroad Co. v. Aspell, 11 Har. 147). Ordinary prudence and due regard for the safety of passengers alike require that special care should be exercised, at public crossings and depots, by passing trains. In view of this the company has provided, by rule No. 99 of its regulations, "That trains approaching stations on double track, where a passenger train may be standing receiving or discharging passengers, must be stopped before reaching the passenger train, and not go forward until the passenger train moves on, or signal is given to come on.” the learned Judge, among other things, said: The deceased and his companion took passage on the local train at Trenton for Penn Valley Station, for the purpose of hunting. The testimony tended to prove that after leaving Morrisville, the first station east of their destination, "Penn Valley" was announced as the next station; that shortly afterwards the train "slowed up" and stopped in front of a platform and station-house on which was painted over the door "Penn Valley Station;" that as soon as the cars stopped, the deceased, somewhat encumbered by his dog and gun, left the car on the left side for the purpose of crossing the track and thus reach-pany's rule or not, he might reasonably assume, ing the platform. Just as he alighted, the east bound express for New York came along at a rapid rate of speed, struck and instantly killed him. It was also shown that on the opposite or north side of the track, and a short distance westerly, there was another platform and station at which way-passengers are regularly received and discharged; but it did not clearly appear that the deceased was aware of this or of the fact that the way-train slowed up and stopped before reaching its regular station, on the right, for the purpose of giving the express train a clear track, to which it was entitled at that point. These and other facts, fairly deducible from the testimony, presented the questions which were properly submitted to the jury. It was claimed by the plaintiffs below, that having been warned that the next station would be "Penn Valley," that the train having stopped opposite the platform and station bearing that name, the deceased had a right not only to assume that he had reached his destination and was expected to leave the cars, but that the rule of the company as to passing trains would be observed, and that he could Safely cross the intervening track and reach the station. On the other hand, it was claimed that the deceased was notified that the train had not under the circumstances, that he could safely Without noticing in detail those portions of |
