Cauley v. Pittsburgh

Mr. Justice Paxson delivered the opinion of the Court This case has been twice argued. There were two suits brought against the defendant company to recover damages for the injuries complained of; one by the father, in his own right,' the other, which is the present case, by the boy who was injured. They were argued together, and the writ in each case quashed, for the reason that but one writ was issued to bring up the two cases. As they were fully argued we deemed it proper to express our opinion upon the merits. No fault was found with our view of the case in which the father sued in his own right, but as to the present case the learned counsel for the plaintiff was of opinion that we had not given due consideration to the distinction which exists between children and adults in the matter of contributory negligence. A second writ of error was accordingly sued out, and was heard at the last terna in the western district. A re-consideration of the case, aided by the second argument, has failed to satisfy us of any error in the former opinion. The distinction referred to was not lost sight of. It is true we did not discuss it then, nor do we propose to do so now, for the reason that, conceding all that is claimed for it, no negligence was shown or offered to be shown, on the part of the defendant company. All the conductor did was to order the plaintiff off [500] the car. This was his duty to do. The boys were trespassers, and their removal from the car was not in itself a cause of complaint. Was there anything in the manner' of their removal which would render the defendant company liable in damages ? The plaintiff was not thrown off. lie was not touched by the conductor or any railroad employe. He was told to get off a sand car which was being shifted from a siding to a switch a few yards distant. Had the conductor any reasonable -ground to believe when he told the boys to get ■ off that any of them would be injured in doing so ? Before the company can be held liable it must appeal1 that the injury to the plaintiff was the natural and probable result of the conductor’s order: such a consequence as he might and ought to have foreseen at the time: Hoag v. The Railroad Company, 4 Norris 293. A sand car is a low flat from which an ordinary boy between seven and eight years of age can jump with perfect safety. If, as was alleged, and offered to lie shown, the plaintiff was frightened at the order he received, it is difficult to perceive how such fact can impute negligence to the defendant. If the brakeman approached the boys in a manner indicating an intention of enforcing the conductor’s orders, it only shows they had refused to comply with his previous request. It was urged, however, and there was an offer to prove,‘that the car was going at “ a rapid rate of speed ” when the plaintiff was told to get off. As a general rule, when an offer of evidence is rejected, we must assume tile facts to be as stated in the offer. But in the present instance the plaintiff’s own statement of his case shows this portion of the offer to have been a physical impossibility. The history of the case, which we have a right to assume to be correct, contains this statement: “ On the 20th of September 1879, John H. Cauley, the minor son of John Cauley, and of plaintiff in this suit, about 9 o’clock a. m., in company with a number of small boys but little older than himself, were playing on a car laden with sand, upon a side track of defendant’s road, which car formed part of a-1 train that the defendant’s employés, under the direction of one of the freight conductors in charge, were shifting, in order to run the same upon a switch a few yards distant. These boys had been playing upon this sand car, and after the train began to move towards the switch with increased speed, the conductor ordered them to get off the car.” That this sand car, in being shifted from a side track tó a switch but a few’ yards distant, could afcquire a “ rapid rate of speed,” is such a physical impossibility as to render the use of those words in the offer of no significance. An offer to prove an improbable thing must be received, but an offer to prove a fact which [501] can only exist by tbe suspension of natural laws does not come within "the rule. From the best consideration we can give this case we are of opinion the judgment must be Affirmed. Tbunkey and Sterrett, JJ., dissented.