Saare v. Union Railway Co.

Ellison, J. The undisputed testimony in this case shows the grossest sort of negligence and carelessness on the part of defendant. In the first place, there was but one person in charge of the car and this was the driver. He left the team and went to the rear end of a crowded car to collect fares, and while back, 'in among the crowd, the horses started up with such suddenness and rapidity as to jerk the car and cause him to hurry forward to take charge of the team. It was doubtless during the time in which he had abandoned the team that the plaintiff;, a boy ten years old, was thrown off the platform. Was no doubt thrown off by the jerk and sudden starting up of the horses, which was felt by the driver ; for. he says it was then he heard the outcry and started to the front to see what was the matter. The evidence tended to show that, before the driver left his team, he had seen plaintiff with others on the front platform, and collected fare from him. There can be doubt of defendant’s negligence; and that of the most culpable sort (74 Pa. St. 421). The only question is as to contributory 'negligence on part of [216] plaintiff. He being of tender years, the question as to the care, and diligence he should exercise, considering his age, was properly left to the jury under instructions. Duffey v. Ry. Co., 19 Mo. App. 380. Defendant complains of these instructions, but they are substantially the same as that asked by and given for defendant. When this is true, defendant cannot complain. The instructions though not to be recommended as good precedents, are, however, correct, under the evidence in this case. Baltimore Ry. Co. v. McDonald, 43 Md. 534; Chicago, etc., Ry. Co. v. Murray, 71 Ill. 601. The court’s action was correct as to the instructions and the offer to amend the answer in regard to plaintiff being in charge or custody of his, brother, or Wolfram. There was no evidence supporting defendant in this respect. Wolfram’s mere declaration to this effect was not competent for that purpose. We are not able to see how his declaration to that effect would make him the custodian of plaintiff. A moment’s reflection would show where the assertion of a doctrine like this would lead to. We discover no error in the trial and, therefore, affirm the judgment. Philips, P. J., concurs; Hall, J., not sitting.