Edelman v. Connell

Per Curiam, The injuries for which compensation is sought in this action were sustained by a.buy when he was eleven yeals and four months of age. With several companions he was coasting on a bobsled, which was struck by an automobile of defendant driven along a street intersecting the one down which the boys were sledding. The contention of appellant that the court below ought to have declared the defendant guilty of negligence as a matter of law, is utterly untenable. That was a question of fact to be determined from the oral testimony in the case, in the light of which learned counsel for appellee contended below and insist here that the trial judge would have been justified in directing a nonsuit or a verdict for defendant. Whether the verdict- was in his favor for this reason, or on account of the contributory negligence of the boy, does not appear.' As to the standard by Avhich the conduct of the boy was to be measured on the question of contributory negligence, the learned trial judge instructed the jury, inter alia, as follows: “The measure of a child’s standard for contributory negligence is his capacity to understand .and avoid danger......The law as to negligence of children is that they are required to exercise only that degree of care and caution which persons of like age, capacity and experience might be reasonably expected to naturally and ordinarily Use in the same situation and under like circumstances......If you should find that the boy, Louis Edelman, although eleven years and four and a half months of age, was not of sufficient intelligence and capacity to appreciate the danger and risks of his act, in order to avoid the danger, then and in that case ■he would not be guilty of contributory negligence...... He was only required to'exercise'that degree of judgment, which boys of that a,ge and of the-same intelligence and observation would be required to exercise, under the same circumstances and conditions.'” These correct instructions are all the plaintiff could have asked for, and 320 they followed what we have repeatedly said: Kehler v. Schwenk, 144 Pa. 348; Di Meglio v. Philadelphia & Reading Railway Co., 252 Pa. 391; Gerg v. Penna. R. R. Co., 254 Pa. 316. The assignments of error need not be considered seriatim. It is sufficient to say that nothing is to be found in any one of them calling for a resubmission of the case to the- jury. Judgment affirmed.