Holdridge v. Mendenhall

Wixslow, J. The boy who was run over by the defendant’s street car in this case was a little less than seven years of age, and was upon the public street, in the daytime, alone, or at least not accompanied by either his parents or any custodian. It is argued that the trial court should have taken the case from the jury, and granted a nonsuit, on the ground of contributory negligence on the part of the boy or his parents. This contention cannot be sustained. In case of an accident happening to a child of such tender years, it must be an extreme case indeed which would 'warrant a court in granting a nonsuit on the ground of the child’s negligence; and it is frequently said that such a child cannot be held guilty of contributory negligence as a matter of law. Johnson v. C. & N. W. R. Co. 49 Wis. 529; McVoy v. Oakes, 91 Wis. 214. Nor can it be said that the parents are guilty of negligence as matter of law for permitting such a child to be alone upon the street. Both of these questions were properly for the jury upon the evidence. Johnson v. C. & N. W. R. Co., supra. But the question whether the evidence showed any negligence on the part of the motorman which was the proximate cause of the injury is a more difficult one. The negligence claimed is that the car was running at excessive speed, that no signals were given, and thus that the boy was run down when the evidence tended to show that he had been on the track a sufficient time within which signals could have been given or the car stopped before reaching him. There is no. dispute but that the accident happened in the middle of a block, at a place where people were not expected to cross the street; and it is admitted that the street car, at the time of the accident, had only proceeded about 150 feet from a full stop. One of the plaintiff’s witnesses testifies that in his judgment the car was going at the rate of twenty-five miles an hour when it was still about sixty feet from the boy, or at a point about ninety feet from the starting point. [5] There is no other testimony, however, which corroborates this estimate, and the testimony of the remaining witnesses on the subject is that the speed did not exceed six or eight miles an hour. The inherent improbability, and almost impossibility, of attaining such a speed in such a short distance is patent, and is supplemented by considerable testimony of experts that it would be absolutely impossible with the motor in use upon the car to attain a speed of twenty-five miles an hour within that distance, or within any distance less than two or three blocks. Assuming, however, that there was sufficient testimony to go to the jury upon the subject of excessive and negligent speed, it is very evident that, unless such negligent speed was the proximate cause of the injury, there can be no recovery on this ground. Pletcher v. Scranton T. Co. 185 Pa. St. 147. If the boy ran unexpectedly in front of the car, and the motorman had no reason to expect any such action on his part, and the accident would have happened in the same way had the car been going at a normal and reasonable speed, then it cannot be said that the speed was the proximate cause of the injury. The accident, in that event, was caused by the sudden and unexpected movement of the boy, and not by the negligence of the motorman. Funk v. Electric Traction Co. 175 Pa. St. 559. Oareful examination of all of the evidence of the eyewitnesses of the accident, including that of the boy himself, convinces us that it was practically undisputed in the case that the boy unexpectedly stepped or ran in front of the car when only a few feet distant, and when it could not have been stopped, nor effective warning given, before it ran over him, whatever its speed. It is true that the boy himself testified that he ran into the middle of the track, and got the peanut, and was standing still, eating it, and had been so standing for a few minutes when he was struck by the car; but this evidence is not only impossible under the admitted facts, but is at variance with the testimony of all [6] the other witnesses who saw the accident, and is also denied by the boy himself. During his cross-examination he said that it took him about a second to get the first peanut, •which he picked up between or on the tracks; that, if the car had not struck him, ifc would have been about a second more when he got the other one; that the moment he got the first one he was going to got the other one,' and the car struck him while he was in the act of moving; that he knew what a second was; that the clock ticks about once a second, and it took him just about that long to go from the curbstone to the first track, and would have taken him about two seconds to get the other one if the car had not hit him. This was repeated in substance two or three times. The boy who threw the peanuts, who was ten years of age, testified that Bex had gone across the west track, and stood between the tracks; that some boys hollered at him, and he jumped right in front of the car, and it struck him. Dr. Sarazin, who was standing on the sidewalk, and saw the peanuts thrown, and the boys start after them, did not keep his eye upon them, but saw Kex on the track, looking east, when the car was about ten feet from him, and at once shouted to the motorman. A young man eighteen years of age, who saw the accident from the sidewalk on the east side of the street, testified that he heard somebody yell, and looked, and saw the boy jump right in front of the car; that he ran from the east right in front of the car, and was knocked down. The motorman testified that when he started • from Belknap street no one was on the track; that he saw some boys playing on the west side of the street about the curbstone; that all of a sudden they scattered, and were grabbing after something; that one chased another, and came to within three or four feet of the track and stopped, and one stooped to pick up something, and then jumped out in the middle of the track in front of the fender; that he (the motorman) was about eight feet from the boy when he [7] stooped to pick up something, and that he then had thrown off the power and hollered at the boy, and was reaching for the reverse, and in that time the boy jumped in front of the car. The only other witness of the accident who testified was a man who sat on the curbstone at the southwest corner of Tower avenue and Belknap street, who testified that as he sat there he saw three boys start to run across the track; that the street car passed going south very rapidly, and that almost instantly as the car passed he saw two boys cross on the other side of the track; that the third boy was under the car; that he did not see him hit, and did not know which way he was looking, nor how he got struck; that it was all done very quickly,— in a second or two. As will be seen, there is nothing in all this evidence except the palpably impossible statement of the boy himself,, which he afterwards contradicted, which brings the boy upon the track more than ten feet in front of the car. The conclusion that he stepped' or ran in front of the car when only a few feet distant is irresistible; in fact, the evidence will sustain no other. The testimony is unanimous that the car could not be stopped within this distance, whether it was going twenty-five miles an hour or six miles an hour. The most of the witnesses who testify on the subject say that a car going eight miles an hour could not be stopped short of about sixty feet. It is true one witness says that an emergency stop could be made inside of fifteen feet, but he afterwards says that this fifteen feet would be after the power is actually applied on reversal, and that it would take about thirty seconds before the power got hold of the car. So the case presented is one of the sudden and unexpected action of the boy in running in front of the car. We see no reason to say that the motorman could reasonably anticipate such action on the part of the boy, and hence his failure to anticipate it cannot be called negligence. Eastwood v. La Crosse City R. Co. 94 Wis. 163. [8] A minor error was committed on the trial affecting the measure of damages. The plaintiff was allowed to testify as to his pecuniary condition, the amount of his property, his earnings, and the size of his family. This was error in an action for loss of services, under the ruling of this court in the case of Rooney v. Milwaukee C. Co. 65 Wis. 397. By the Court.— Judgment reversed, and action remanded for a new trial. Cassoday, O. J., took no part.