Kroesen v. New Castle Electric Street Railway Co.

Opinion by Mr. Justice Fell, The refusal of the court to direct a verdict for the defendant [29] was clearly right. The plaintiff was not of an age to be charged with contributory negligence. The testimony on her behalf tended to establish these facts: The car was at a full stop at the end of its route. When the motorman was about to start it, the plaintiff left a chair on which she had been sitting on the sidewalk, and crossed the street to the curb on the other side, and then turned and walked back to the middle of the track, where she stopped and stood apparently confused by cries of alarm from a number of persons who saw her danger. When the plaintiff started to cross the street, the car was within 800 feet of her, and when she turned to recross it was not more than 120 feet from her, and she was less than twelve feet from the track. It was Sunday evening and children were playing on the sidewalk. The street was but twenty-nine feet in width between the curbs; it was entirely free of vehicles and there was nothing to obstruct the view. The motorman was not looking ahead, but to one side toward a passenger who was riding on the front platform. The case presented by this testimony was not that of a child suddenly and unexpectedly running in front of a moving car, and giving rise to an immediate danger against which there was no opportunity to guard. The circumstances were such as to require unusual care on the part of the motorman, and he had ample opportunity to observe the danger in time to guard against it. The jury might well infer that if he failed to look ahead he was negligent, or that, if he looked, he saw the child and was negligent in not controlling the motion of the car so as to avoid injuring her. It is only in clear cases where neither the facts nor the inferences to be drawn from them are in doubt that the court is warranted in withdrawing the question of negligence from the jury. This is far from being such a case. The judgment is affirmed.