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

[86] The opinion of the court was delivered, January 26th 1874, by Mercur, J. The first assignment of error is not according to the rules. All the other assignments are to the charge of the court, and will be considered together. As a general rule a question of negligence must be submitted to the jury. It should be where there is any substantial doubt as to the facts, or to the inferences to be drawn from them: Pennsylvania R. R. Co. v. Barnett, 9 P. F. Smith 259; Johnson v. Bruner, 11 Id. 58; McKee v. Bidwell, 24 Id. 218. There is no absolute rule as to what constitutes negligence. It is dependent upon the particular circumstances of the case. Where the measure of duty is not unvarying; where a higher degree of care is demanded under some circumstances than under others; ■where both the duty and the extent of its performance are to be ascertained as facts, a jury alone can determine what is negligence, and whether it has been proven: McCully v. Clarke et al., 4 Wright 406; Pennsylvania Canal Co. v. Bentley, 16 P. F. Smith 30. Where the measure of duty is ordinary and reasonable care, it is always a question for the jury : West Chester & Philadelphia R. R. Co. v. McElwee, 17 P. F. Smith 311. Where negligence is concurrent, a child will not be held to the exercise of the same degree of care and discretion as an adult: Rauch v. Lloyd et al., 7 Casey 358; Pennsylvania R. R. Co. v. Kelly, Id. 372; Smith v. O’Connor, 12 Wright 218; Oakland Railway Co v. Fielding, Id. 320; Glassey v. H., M. & F. Passenger R. R. Co., 7 P. F. Smith 172; Kay v. Pennsylvania R. R. Co., 15 Id. 269. Now let us apply the law to the facts in this ease. The plaintiff was a child of the age of thirteen years. He and his companion, a boy of the same age, signalled the driver as the defendants’ car crossed Thirteenth street. The car was slackened to receive them ; they stood there by the side of the driver all the way out to Eorty-first street and Lancaster Avenue. No objection was made by either the driver or conductor to their riding there; neither of them requested the plaintiff to step inside of the car ; the conductor came to him and collected his fare; at Eorty-first street and Lancaster Avenue, the plaintiff said to his companion in a voice sufficiently loud for the driver to hear, “I am going to get off here.” The speed of the car was thereupon slackened; the plaintiff took hold of the dasher with one hand, and the iron on the car with the other, and stepped off; the car continued in motion; the plaintiff’s foot slipped; he retained his hold to save himself; he was dragged two or three yards, and until the front wheel ran over his foot, causing the injury of which he complains. There was a crossing in the street where he desired to get off. In view of the plaintiff’s age, we think this evidence should have been submitted to the jury ; the jury should have determined whether the plaintiff had been guilty of negligence. He should be [87] held to tbe exercise of that degree of care and discretion ordinarily to be expected of a child of his age, neither more nor less: Smith v. O’Connor, supra. So in regard to the defendants’ alleged negligence. As the plaintiff was suffered to stand upon and get off from the front platform, it should have been submitted to the jury to find whether the defendants, under all the facts, exercised proper care in not sooner stopping the car. It is the duty of a railway company to cause its cars to come to a full stop, to permit a passenger to get off. Whether the defendants properly discharged this duty with a due regard to the age of the plaintiff, and of the notice of plaintiff’s desire to leave the car, should have been left to the jury. We think the learned judge erred in directing that the verdict should be for the defendants. The errors are sustained. Judgment reversed, and a venire facias de novo awarded.