Hestonville, Mantua, & Fairmount Passenger Railroad v. Kelley

Mr. Justice Green delivered the opinion of the court, February 12th 1883. After a very careful consideration of the testimony in this cause we are unable to discover any evidence of negligence on the part of the defendant, productive of the injury in respect of which the suit is brought. The only testimony upon which it is possible to found an allegation of negligence is that of the boy lvnight, who was the companion of the deceased at the time of the accident. JBut that testimony, in our judgment, fails to establish the ingredients necessary to an accusation of negligence against the defendant. It fails to prove that the driver asked or permitted the deceased to get upon the car, or that he knew of his presence there. The boy said, on cross-examination, 'that he had before testified that the driver addressed him (Knight), saying, “ Roy, will you come and turn switch,” and he said nothing contradictory of this in his examination in chief. He does not say that either of them was asked to ride on the front platform or to ride on the car at all. He does testify that he jumped on the front platform and that deceased jumped on next after him. He does not say that the driver either spoke to or saw the deceased, or in any other manner had knowledge of his presence. He testifies that he rode about a fourth of a square, jumped off, turned the switch, jumped on again, and then Kelley’s hat blew off, and he (Kelley) jumped after it but slipped under the car wheels, which ran over him and killed him. To drive a horse car the length of one fourth of a square would necessarily occupy but a fraction of a minute. A rigid examination of Knight’s testimony, 'which was very brief, developes no consciousness on the driver’s part of the presence of Kelley on the platform. In order to learn how that fact was, it is necessary to resort to other testimony. Rut there is no testimony on that subject in the case, except that of the driver himself. He says, “ When I was coming up to the switch I was leaning over the car, the front dasher, looking out for the switch. I was going very slow, when three boys jumped on, on my left hand side, the biggest one of the three ran right behind me, and right up to the switch and turned it, and sang out all right. I straightened up then, and looked around to the other two boys, and: they were gone. I went some distance and I felt a jar of one- wheel, and heard somebody say that the ear had run over a boy,” Further on he says, “I did not see the boys until they jumped on car. When the boy jumped on the car, said something. He said he would turn the switch, and I judge I said something. I am not quite sure, but I think I said, ‘ go ahead.’ I did not speak to the other boys ; I hadn’t time. They were on about half a minute. After the boy that turned the switch said ‘ all •right,’ I straightened up and the boys were gone.” He also [119] said, “I leaned over, not because I saw a couple of boys, but on account of the switch.’’ There is nothing contradictory of this in the testimony of Knight, except as to the number of the boys, which is not material. When the boys jumped on, the driver, who was at his post, was leaning over the dasher looking out for the switch. He was in the strict performance of his duty. When that duty was accomplished he turned to look for the boys and they were gone. He was certainly bound to look out for the switch, and not to desist until he had safely passed it. Had he desisted from the performance of this duty in order to eject the boys and an accident had happened in consequence, he would have justly been chargeable with negligence. While it is true he was bound to put off the boys, regard must be had to the circumstances in which he was placed, at the moment that duty became incumbent upon him. According to the uncontradicted testimony the whole interval of time that the boys were on the car did not exceed thirty seconds. In that space, and with the driver’s attention otherwise properly engaged, it is not just or reasonable to hold him guilty of negligence as for a permissive riding upon the front platform. In no other respect is there the slightest ground for a charge of negligence. The car was properly constructed, the boy was not crowded or jolted off, his death was not the result of any act of the defendant or its agent, but it resulted solely from his own voluntary, unauthorized, and unnecessary act of jumping from the car ■while in motion. While so young a child is not responsible for contributory negligence still there can be no recovery except for negligence on the part of the defendant, and this we fail to find in view of the circumstances attending the occurrence. The case is peculiar, and differs from all that have heretofore been considered by this court. • It more nearly resembles the case of Hestonville Pass. R. R. Co. v. Connell, 7 Norr. 520, than any others. There the child was injured in endeavoring to get upon the front platform of the car, but was not seen by the driver, who was engaged on the rear platform at the time. On p. 523, Mr. Justice Gordon says, “The accident here complained of could not have happened but by the direct act of the plaintiff in his sudden and improper attempt to board the car, and this when the car was moving slowly, and when the driver had no reason to anticipate danger to any one, yoimg or old.” In Pittsburgh, Allegheny, and Manchester Railway Co. v. Caldwell, 24 P. F. S. 421, the evidence of a continuous permissive riding upon the front platform was clear and undisputed by the driver himself, and the decision of the case was put upon that ground. In Phila. City Pass. Railway Co. v. Hassard, 25 P. F. S. 367, the facts were that the boy, who was about ten years old, was a passenger, and [120] attempted to get off the rear platform, but did not succeed, owing to the crowded condition of the car, and he then went to the front platform and got off there. There were several persons on the front platform, and it was testified that the driver was asked by the boy to stop, that the driver slackened up, but did not stop, and it was left to the jury to say whether there was negligence on the part of the company. This action of the court below was assigned for error and affirmed by this court. What was said as to the duty of the defendant to prevent children from riding upon, or getting off from, the front platform, was said with reference to the facts of the case, but all that was decided, was, that it was the province of the jury to determine the question of negligence in view of all the circumstances. The driver was perfectly conscious of the boy’s presence on the platform, and of his attempt to get off, and he made no effort to prevent him. But here, as_we have seen, the facts were very different. Where the sole basis of liability is the omission to perform a certain duty suddenly and unexpectedly arising, we think there ought to be at least a consciousness of the facts which raise the duty on the part of the person who is charged with its performance, and a reasonable opportunity to discharge it. Upon the whole testimony in this case we think there was no proof of negligence on the part of the defendant, and that the eighth point of the defendant should have been affirmed. Judgment reversed.