Strawbridge v. Bradford

[204] Opinion, Mr. Justice McCollum: There was abundant evidence to carry this case to the jury on the question of the alleged negligence of the defendants in failing to provide a reasonably safe elevator, for the uses required of the one on which the plaintiff was injured. This elevator was constructed for the purpose of carrying freight. Two sides of it were without guards of any description. It ran in an aperture the sides of which were ten and a half inches distant from the platform, and into which, at each floor, unbeveled sills projected eight and three quarter inches. It was operated by the defendants for the double purpose of transporting their freight and their employees. From thirty to one hundred delivery boys were required to use it, in entering and departing from the basement of the building where they were stationed, and in passing from the basement to the upper floors in the performance of the tasks assigned them. A number of persons acquainted with the construction and use of elevators, testified that this was not a reasonably safe one for the transportation of these boys, and this evidence was not answered. An unsuccessful attempt was made by the defendants to show that in establishments like theirs, freight elevators were generally used as this was, but there was no effort to prove that it was proper and safe to so use them. Certainly, upon this evidence the court could not say that the defendants had discharged their whole duty and were guiltless o-f negligence in the particular complained of. It is claimed, however, that the plaintiffs own negligence contributed to his injury and prevents a recovery, and that the court should have so instructed the jury. But it must be borne in mind that this plaintiff had not attained the age when sufficient capacity to be sensible of danger and to avoid it is presumed: Nagle v. Railroad Co., 88 Pa. 35. A boy’s capacity is the measure of his responsibility; and if he has not the ability to foresee and avoid the danger to which he may be exposed, negligence will not be imputed to him, if he unwittingly exposes himself to it: Phila. etc. Ry. Co. v. Hassard, 75 Pa. 367; Crissey v. Railway Co., 75 Pa. 86. When an infant who has not reached the age of discretion is charged with concurrent negligence, it becomes important to inquire if he had sufficient understanding to comprehend and guard against the peril he [205] was in, and this matter is ordinarily to be considered by the jury, in connection with the other circumstances of the ease and under proper instructions from the court. It is true that in Honor v. Albrighton, 93 Pa. 475, it was said that “the conduct of the boy presented a case of contributory negligence,” but there is nothing in the report of the case to indicate that the question raised here was suggested or considered; and as it was distinctly ruled that the defendants had discharged their whole duty to the plaintiff, and the act which constituted the alleged negligence was that of a fellow servant, it was unnecessary to inquire into the conduct or ability of the plaintiff as affecting his right to recover. The decision in Miller v. Railroad Co., 2 Pa. Sup. Ct. Dig. 57, was by a divided court, and within the rule laid down in Nagle v. Railroad Co., supra. In the present case, it was proper and important to consider the plaintiff’s own testimony as to his knowledge of the elevator, and the danger to which he was exposed when riding upon it, but this we think was for the jury, in connection with the other evidence. We are of opinion that the question of the alleged contributory negligence of the plaintiff was not a question of law for the court, but of fact for the jury, and that it was properly submitted. Judgment affirmed.