Fineman v. Philadelphia Rapid Transit Co.

Opinion by Henderson, J., The two assignments of error raise the same question and may be considered together. That question is, Does the contributory negligence of the plaintiff preclude a recovery for him in this action? The position taken by the appellant is that the plaintiff did not exercise care in preventing his child from going onto the street and that he was, therefore, guilty of contributory negligence. In support of this position the rule is invoked that when a parent perínits a child of tender years to run at large without a protector in a street traversed by cars and other vehicles he cannot recover because of his contributory negligence if his child be injured. This doctrine is firmly established in this state as is shown by numerous cases. The contributory negligence which relieves the defendant involves [381] permission or inattention. Where a child is allowed by a parent to go at large in a place of known danger or is permitted to be there without care and supervision such conduct is negligence. The parent owes a duty to the child and to the public to exercise care. But what is the measure of this care? The burden resting upon the parent is thus stated in Sherman & Redfield on Negligence (5th ed.), sec. 72, “In an action by the parent or master, however, it is to be remembered that he must be actually in fault, in order to bar his recovery on the ground of his contributory fault. Where a parent or guardian has done all which can reasonably be expected of one in his circumstances, he is not debarred from recovery by the mere fact that he has not thrown as many restraints around his child for its protection as would be reasonably expected from parents having more means at their command.” There must be reasonable care dependent on the circumstances: Phila. & Reading R. R. Co. v. Long, 75 Pa. 257; Dunseath v. Traction Co., 161 Pa. 124; Johnson v. Railway Co., 160 Pa. 647. The care required is only such as persons of reasonable prudence of the same class and with the same means ordinarily exercise and deem adequate to protect their children from danger: Del Rossi v. Cooney, 208 Pa. 233. Who shall determine what is the reasonable prudence ordinarily exercised by parents in the same class with the plaintiff? Undoubtedly the jury, except in a very plain case. The occupation and financial ability of the parent, the place of residence, the size of the family and the general conditions surrounding the home may materially affect the question. Consider, then, the facts of this case: The plaintiff was a tailor carrying on a shop in a back room in the second story of the house in which he lived. The child which was hurt was between 'four and five years of age. In addition to her there was a baby in the house. A young girl was employed as a housemaid and to assist with the children. The accident occurred between twelve and one o’clock. The father was at work in his shop and had seen the little girl about ten minutes before the accident. The mother was upstairs giving attention to the youngest child. The little girl was downstairs with the maid. About five minutes after the [382] mother last saw her word was brought to the house that the accident had occurred. Neither the father nor mother knew that she was out of the house. The evidence does not show where the maid was during the five minutes after the child left her mother and went downstairs, but it is not unreasonable to presume that she was engaged in duties connected with the kitchen at that hour of the day. The case is wholly destitute of evidence of any permission of the parents to their child to be on the street. She had gone a short distance from home to a candy store and was struck by the car as she was returning. On such a state of facts it cannot be declared as a matter of law that the father was guilty of contributory negligence. Must the child be every moment in the grasp or under the observation of the parent? And is his failure to notice for five minutes that she was out of the house to be charged against him as conclusive evidence of the want of the exercise of reasonable care? Nothing but the employment of a caretaker whose time should be wholly devoted to the children could meet this requirement when we consider the other necessary obligations resting on the parents, and such attention is out of the question in a great majority of cases. Sullenberger v. Chester Traction Co., 33 Pa. Superior Ct. 12, upon which the appellant relies grew out of an entirely different state of facts. The child in that case was sent by the parent on an errand to a store across the street and in returning was injured by a passing car. There was permission, therefore, for the child to be in a place of danger. In Johnson v. Railway Co., 160 Pa. 647, another of the cases cited, the mother was standing on the front porch when the child passed her and went onto the street, across one railway track and onto another where it was killed in the immediate view of its mother. Here there was knowledge by the mother of the absence of the child from the house and the conclusion would be irresistible that it was on the street with her permission. She knew the danger and that the child was exposed to it or at least ought to have known it as the whole occurrence was within the range of her vision. The distinction is clear between this class of cases and those in which a child escapes from the observation [383] of the parent and from the premises. In Railway Co. v. Pearson, 72 Pa. 169, a child left the house and went into an alley to play with a little girl. The parents were informed of the fact and were satisfied that he was safe with her. The little boy ran away from his companion, however, went onto a street car track and was run over. It was held to be a question for the jury whether the parents should have been satisfied to leave the child at large with the little girl. Lederman v. R. R. Co., 165 Pa. 118, is a case where there was permission given by the mother to the child to go to a near neighbor’s on the same street to help his playmates sell shooting crackers. He was soon after killed at a street crossing. It was there held that it was a question for the jury whether the conduct of the mother constituted negligence. Our own cases are of like import. Henne v. Ry. Co., 1 Pa. Superior Ct. 311, was a case where a child passed out of the house through the kitchen where a servant was at work, out into the yard and through a gate onto the railroad track, and it was determined that the question was properly submitted to the jury. Buente v. Traction Co., 2 Pa. Superior Ct. 185, is another case where a child three years of age was left by the parent in the kitchen with other children in charge of a servant, who left them to go to a grocery. During the absence of the servant the child wandered out to the street and was killed. The question of contributory negligence was held to be one for the jury. The same conclusion was reached in Corpies v. Sand Co., 31 Pa. Superior Ct. 107, where the mother left the child in the house playing while she went across the street on an errand. These authorities are consistent with reason and experience and control the case we are considering. To hold that, if a father and mother occupied with the numerous daily cares of life neglect to observe for a few moments that .a child of tender years has got out of the house and to a place of danger, such conduct is conclusive evidence of negligence would be a hard rule and one which ought not to be established. Justice will be more satisfactorily administered by referring the question to a jury except in very clear cases. The able argument of the learned counsel for the appellant has not persuaded us that the court [384] was in error in submitting the question of contributory negligence to the jury; The judgment is affirmed.