Pitcher v. People's Street Railway Co.

Negligence — Street railways — Passenger—Getting on front platform. Where a child between seven and eight years of age attempts to get upon the front platform of a street car when the car has stopped to let off a passenger, but neglects in any way to announce his intention to become a passenger, or to signal to the driver or conductor who did not see him, and he is injured by the starting of the car in its ordinary course, there can be no recovery of damages from the railway company: Pitcher v. People’s Ry. Co., 154 Pa. 560, followed. In such a ease it is immaterial that the conductor could have seen the boy if he had looked; and it is also immaterial that the car was without a fender.

Appeal, No. 135, July T., 1895, by defendant, from judgment of C. P. Lackawanna Co., Sept. T., 1890, No. 633, entering nonsuit. Trespass for personal injuries. Before Schuyler, P. J., of the 3d judicial district, specially presiding. At the trial it appeared that on November 23,1887, plaintiff, who was a boy at the time between seven and eight years of age, was injured while attempting to get upon the front platform of one of defendant’s cars in the city of Scranton. When the car came opposite to where the boy was standing it was stopped and a passenger passed out from the rear door. While the car was stopped the boy started, with Iris school books and dinner basket in his hands, walking a little faster than usual, intending to enter the car, and so be ready for the return trip when the car should reach the terminus of the track a few feet further on. He approached the front platform upon the left ■side of the car, placed his right hand upon the rail or handle next the body of the car, and just as he was about to place his foot upon the step, the car started, and he was thrown under the wheel. He gave no signal to either the conductor or driver of his purpose to enter the car. It appeared that the conductor could have seen the boy if he had looked, and that he did not look. There was proof that no fenders were used on this line of cars at the time of the accident, and that they were used on other street cars in the city of Scranton. The court entered a compulsory nonsuit which it subsequently refused to take off, filing the following opinion: The boy whose unfortunate injuries have given rise to the present action has admitted with a frankness that does him great credit, that he did not give any indication to the driver or conductor of his intent or desire to get on the car, nor is there any evidence that either the driver or conductor saw him in the act of getting on. Much as we sympathize with the boy, and we do sympathize with him most profoundly, we are constrained to hold, under the decision of the Supreme 'Court in the action brought by the boy’s father, that under the circumstances just mentioned there can be no recovery in the present action. The particulars in which it is claimed that the present action differs from the former one we think are unimportant. Affirmative proof that the conductor could have seen the boy if he had looked, and that he did not look, rises no higher than the necessary inference from the facts in evidence in the former case, nor are we prepared to say that the omission to look was under the circumstances negligence per se. The conductor like the driver had other duties to perform besides inspecting the car on both sides to see if no boys were hanging on to the front platform. Nor are we prepared to say that the absence of fenders was under the circumstances evidence of negligence. The starting of the car was the proximate cause of the boy’s injury, but the Supreme Court say that there was no negligence in that. If that be so we are unable to see how the more remote causes can be deemed evidence of negligence. In the Supreme Court the case did not turn upon any such considerations, but exclusively on the two facts which are also in evidence in the present case, that the boy attempted to board the car without notice to either the conductor or driver, and secondly that neither the conductor nor the driver saw him. Under these circumstances the court held in language that cannot be mistaken that the defendant owed the boy no duty recognized by a court of law. The rule to show cause why the judgment of nonsuit should not be set aside is therefore discharged. Error assigned was in refusing to take off nonsuit.