Erie City Passenger Railway Co. v. Schuster

Mr. Justice Trunkey delivered the opinion of the Court, At the date of the plaintiff’s injury she was nearly four years of age. She was on her way to a neighboring store, having been sent alone by her parents. The injury was inflicted on the north walk of a street crossing, where people were accustomed to cross on foot: there is no evidence of special hazard at that crossing occasioned by large amount of travel, or otherwise. The driver had stopped his car at the south walk, and there was little time or distance for his team to gain much speed. He first saw the child under the tongue when the horses jumped; he had given his attention to passengers between the south and north walks. Other persons saw the child in danger and endeavored to get him to stop. “At the time of the injury to this child the driver was charged not only with driving and managing the horses, but also collecting the fare; ” no change box was in the car. Upon the driver rested the entire duty of collecting fares, caring for the convenience of passengers, and proper driving. Ilis stop at the south walk had no tendency to warn the child, or anybody else, to keep off the north walk or be run over. Had he kept lookout between the crossings be could readily have seen the child. In response to the defendant’s request, the jury were in-, structed that if the horses were moving at a moderate rate of speed, and ran upon the child before she could be seen and without time for the driver to stop the car; or if the child suddenly came in the way of the horses unseen by the driver, and without giving liim time to stop the liorses; or if tlie injury did not happen from any want of ordinary care in tlie management of the horses at the time of the accident, the [416] plaintiff could not recover. And upon that instruction the questions of fact were submitted. Much more was said in the general charge, but nothing to weaken the affirmance of the defendant’s first, second and sixth points. The first alleged error is that the Court refused to charge, “That even if the driver did see the child so close that it might reach the horses or car before they passed, it was not necessarily negligence in the driver not to stop. He was not bound to stop if it seemed improbable to him that the child would reach the horses or car, and he had a right to presume that a child of her age would not heedlessly run into an apparent danger; ” but instead, submitted to the jury whether under all the-facts and circumstances shown, there was negligence by the defendant. The instruction prayed in the third point was based on the assumed fact-that the driver saw the child “so close that it might reach the horses or car before they passed.” In the printed argument of plaintiff in error it is said, “There is not one word of evidence in the ease to show that the driver saw the child before the horses struck her.” That is true. The driver testifies he did not see her before; and no witness says he did. Instruction upon things imagined should not be blended with instruction upon things-of which there is evidence. The testimony of the driver tended to show that he was looking ahead, just as he ought to have done, at and immediately before the moment the child was struck ; other testimony tended to show that he was looking back and speaking with passengers. Here was a real question for the jury, one not to be confounded with anything outside the case. The first assignment cannot be sustained. The second assignment of error is the refusal of the defendant’s seventh point, namely, “If the jury believe from the evidence that the plaintiff was allowed to play on the street unattended, or was sent into the street by its parents 'on an errand that required her to cross the street, such an act was such negligence as will prevent a recovery by the plaintiff in this case. In such case the negligence of the parents will be imputed to the plaintiff.” Whether the contributory negligence of a parent will bar recovery by an infant for injury resulting from the negligence of another, is a question upon which there is a conflict of decisions in the states of this country. In Pennsylvania the cases are numerous in which infants have recovered compensation for injuries caused by the negligence of others, and no action has failed because of the negligence of the parent or guardian being imputed to the child. In Smith v. O’Connor, 48 Pa. St., 218, it was said, We are asked to approve and ap [417] ply the doctrine that the negligence or imprudence of the parents or guardians in allowing a child of tender age to be exposed to''injury in a highway, furnishes the same answer to an action by the child as the negligence or other fault of an adult plaintiff would in a similar case. The negligence of the parent or guardian is imputed to tbe child, and hence unless the infant plaintiff has exercised the care demanded of an adult, no action can be sustained. This is holding the child responsible for the ordinary care of adults. In our opinion the rule does not rest upon sound reason. And the judgment in favor of the infant plaintiff was affirmed. The ruling in that case lias remained unquestioned till now. But one case is cited by the plaintiff in error, Fitzgerald v. Railway Co., 8 Am. & Eng. R. C., 310, with the references therein. In support of the ruling in Smith v. O’Connor, might be cited, Railroad Co. v. Snyder, 18 Ohio St., 399, a well considered case, and cases in several other states. For clear and forcible reasoning in support of the doctrine that where the defendant discharging his duties carefully, could have avoided injuring the child, no amount of negligence by the child’s parents is a defence, reference is made to Wharton on Law of Neg., §§ 309, 310, 311, 312. This doctrine has been repeatedly recognized. Among the cases are Glassy v. Railway Co., 57 Pa. St., 172, where it was decided the father could not recover for an injury to his son of tender years, caused in part by his own imprudence, though the infant may ; and Railroad Co. v. Mahony, Id., 187, where it was remarked if the action was by the father to recover damages for the death of the child, a very different question would be presented. To a child of plaintiff’s years-no contributory negligence can be imputed. In tbe refusal of tbe seventh and eighth points there was no error. Judgment affirmed.