.20

stopped;19 where the driver had his head turned toward the inside of the car as a child started to cross the street, and did not look forward until admonished of her danger by the outcries of other persons;2 where the car approached a street crossing at a very fast rate of speed without any alarm, while there were a number of boys on the track in full view of the motorman, one of whom was standing in the center of the track with his back towards the car;21 where a motorman entirely released his brake on a down grade after bringing it almost to a stop, while a child under four years old was within ten feet of the car and five feet from the track, although the child had turned away from the track;22 where a child three years old on the track in front of the car was not observed by the motorman because he was engaged in making change for a passenger;23 where the driver, instead of keeping his team under control on approaching a crossing at which there were two women with babies in their arms, and seven small children whom he could have seen at a distance of forty feet, increased the speed of his horses and ran over one of the children ;24 where, in consequence of driving his car toward the crossing at a high rate of speed, it was driven upon a boy as he emerged from behind a wagon for the purpose of crossing the street;25 where the motorman. ran his car at the rate of ten miles an hour through a street crowded with children, and, with his eye fixed on one child, succeeded in striking another;20 where the driver urged on his horses by striking them while a child five years old was standing in full view between the street car tracks, from twenty to forty feet from the car, apparently about to cross the track in front of the car.27

§ 1426. Injuries Produced by Children Running in Front of the Cars.-A frequent source of accident arises in those cases where children, in obedience to their childish impulses, attempt to run across a street in front of an approaching car when there is not space enough between them and the car to enable the driver, gripman, or motorman, by using his utmost exertion, to stop his ear in time to avoid running upon them. In such cases, whether the primary cause of

19 Citizens' &c. Pass. R. Co. v. Foxley, 107 Pa. St. 537.

20 Levy v. Dry Dock &c. R. Co., 58 Hun (N. Y.) 610, mem.; s. c. 35 N. Y. St. Rep. 769; 12 N. Y. Supp. 485.

21 Baltimore City &c. R. Co. v. Cooney. 87 Md. 261; s. c. 11 Am. & Eng. Rail. Cas. (N. S.) 759; 39 Atl. Rep. 859.

22 Woeckner V. Erie &c. Motor Co., 176 Pa. St. 451: s. c. 38 W. N. C. 549; 35 Atl. Rep. 182.

23 Barnes v. Shreveport City R. Co., 47 La. An. 1218; s. c. 17 South. Rep. 782; ante, § 1405.

24 Wihnyk v. Second Ave. R. Co., 14 App. Div. 515; s. c. 43 N. Y. Supp. 1023.

25 West Chicago St. R. Co. v. Stoltenberg, 62 Ill. App. 420.

26 Buente v. Pittsburgh &c. Traction Co., 2 Pa. Super. Ct. 185.

Gumby v. Metropolitan St. R. Co., 29 App. Div. 335; s. c. 51 N. Y. Supp. 553.

28

the calamity be regarded as the contributory negligence of the child, or the indiscretion of the child if too young to be chargeable with the consequence of contributory negligence, or mere accident or misfortune, the street railway company will not be liable to pay damages, for it has done no wrong. It has even been held that a street railway company is not liable for the death of a boy who ran in front of a car when it was so close upon him that a collision could not be prevented, even though the car was running at a negligent rate of speed.29 So, the railroad company was exonerated from the imputation of negligence where, although the gripman saw a child five years old on the sidewalk before starting his car, yet after starting it the child, unexpectedly and without warning, ran from the pavement into the front end of it, so quickly that the gripman could not have stopped it prior to the accident;30 where, the driver being at the rear of the car, driving boys off the car in pursuance of a city ordinance, a child two years old placed itself inside the foreleg of the mule drawing the car, in such a position that the driver could have seen it only by stooping, and he started the mule, which resulted in the killing of the child; where a child eight years old, attempting to cross a street having two tracks, where there was no established crossing, passed behind a car going one way, and was almost immediately struck by a horse attached to a car going the other way on the other track, notwithstanding the efforts of the driver of the latter car to swing the

31

28 Baltimore &c. R. Co. v. Cooney, 87 Md. 261; s. c. 11 Am. & Eng. Rail. Cas. (N. S.) 759; 39 Atl. Rep. 859 (child ran and fell, and was run over); Greenberg v. Third Ave. R. Co., 35 App. Div. 619; s. c. 55 N. Y. Supp. 135; Callary v. Easton Transit Co., 185 Pa. St. 176; s. c. 39 Atl. Rep. 813; Mulcahy v. Electric Traction Co., 185 Pa. St. 427; s. c. 39 Atl. Rep. 1106; Kierzenkowski v. Philadelphia Traction Co., 184 Pa. St. 459; s. c. 39 Atl. Rep. 220; 9 Am. & Eng. Rail. Cas. (N. S.) 533; Ogier v. Albany R. Co., 88 Hun (N. Y.) 486; s. c. 34 N. Y. Supp. 867 (child suddenly emerging from behind a wagon upon the track); McLaughlin v. New Orleans &c. R. Co., 48 La. An. 23; s. c. 18 South. Rep. 703; Funk v. Electric Traction Co., 175 Pa. St. 559; s. c. 34 Atl. Rep. 861; Culbertson v. Crescent City R. Co., 48 La. An. 1376; s. c. 20 South. Rep. 902; Sciortino v. Crescent City R. Co., 49 La. An. 7; s. c. 21 So. Rep. 114.

Co., 185 Pa. St. 147; s. c. 39 Atl. Rep. 837.

30 Chilton v. Central Traction Co., 152 Pa. St. 425; s. c. 31 N. W. C. 409; 23 Pitts. L. J. (N. S.) 413; 25 Atl. Rep. 606.

Hearn v. St. Charles St. R. Co., 34 La. An. 160, Levy, J., dissenting. This case was well decided on the case stated by the plaintiff in his pleading, which proceeded on the negligence of the driver merely. The company provided no conductor for the car, and it was therefore its fault which drew the driver from his post of duty in front of the car. In the state of the issues, the court was only obliged to fix its attention upon the question whether or not the driver, in the position in which he was placed, was personally guilty of negligence; whereas, the question should have been whether the company was guilty of negligence. The driver may have acted reasonably under the circumstances, but nevertheless the company acted unrea

20 Pletcher v. Scranton Traction sonably in not providing a con.

ductor.

horse aside and prevent the collision;32 where a child, standing five feet away from the track, suddenly broke loose from its companion and ran in front of the car, the motorman using all the means at his command to stop it and prevent the accident;33 where a child four years of age was a passenger on a street car, and was in the custody of a girl sixteen years of age, and was put off the car at its stopping place by the conductor, and the custodian followed it, and both reached the street in safety, and, while waiting for a car on a parallel track to pass, the child ran toward the passing car, came in contact with it, and was thrown down and injured.34

36

§ 1427. Cases of this Kind where the Company was not Exonerated.35-But many cases of this kind arise where the company is not exonerated, as where the motorman failed to see a child less than two and a half years old until she was in front of and almost under the car, where a passenger saw her start across the street before the car started ;3 where the driver was urging his mule without seeing a child approaching the track, and a passenger noticed the child ereeping towards the track, and spoke to the driver, who did not seem to heed him, and that, upon his again warning him, he became aware of the danger and turned on his brake, but too late to avoid the accident; ;37 where the motorman failed to stop his car at once on seeing children running across the track one hundred feet in front of the car, where he brought the car under control;38 where, under the circumstances last named, the motorman used the reverse handle instead

32 Baker v. Eighth Ave. R. Co., 62 Hun (N. Y.) 39; s. c. 41 N. Y. St. Rep. 353; 16 N. Y. Supp. 319.

33 Paducah Street R. Co. v. Adkins (Ky. Super. Ct.), 14 Ky. L. Rep. 425. It seems that there was at one time a statute in Texas exonerating railroads from liability except in cases of gross negligence: Rev. Stat. Tex., art. 2889. This statute, which bears the finger-marks of some astute railroad lawyer, or of a railroad lobby, and which for a time disgraced the legislation of Texas, was construed in the following among other cases: -Cotton Press Co. V. Bradley, 52 Tex. 587; International &c. R. Co. v. Cocke, 64 Tex. 151; Houston &c. R. Co. v. Cowser, 57 Tex. 305; Houston &c. R. Co. v. Myers, 55 Tex. 115; Dallas City R. Co. v. Beeman, 74 Tex. 291; s. c. 11 S. W. Rep. 1102 (street car running over a child); San Antonio Street R. Co. v. Caillouette, 79 Tex.

VOL. 2 THOMP. NEG.-7

341; s. c. 15 S. W. Rep. 390 (street car running over a child).

34 Schneidau v. New Orleans &c. R. Co., 48 La. An. 866; s. c. 19 South. Rep. 918.

35 Compare § 1424, where this section is referred to.

36 Calumet &c. St. R. Co. v. Lewis, 68 Ill. App. 598; aff'd in 168 Ill. 249; s. c. 48 N. E. Rep. 153.

37 San Antonio St. R. Co. v. Cailloutte, 79 Tex. 341; s. c. 15 S. W. Rep. 390. There is a decision to the effect that the driver of a horse car which is proceeding slowly is not guilty of negligence in failing to stop the car immediately on seeing a child at a distance of eighteen feet apparently about to cross the track: Lavin v. Second Ave. R. Co., 12 App. Div. 381; s. c. 42 N. Y. Supp. 512; following Fenton v. Second Ave. R. Co., 126 N. Y. 625.

38 Stabenau v. Atlantic Ave. R. Co., 155 N. Y. 511; aff'g s. c. 15 App. Div. 408; 44 N. Y. Supp. 36.

97

of the brake, on observing that one of the children had fallen when the car was close upon her;39 where a child two and a half years old, after crossing the track a few feet in front of a car which was moving slowly, turned suddenly back upon the track while the car was yet fifty or one hundred feet distant, and was run over;40 where the motorman saw a boy less than five years of age running toward the car as though he intended to take hold of it, and after motioning him back, and observing that he still continued to advance, did not stop until the child reached it and was thrown down and injured by the moving car, the questions of negligence and contributory negligence being for the jury; and where a motorman, when fifty or sixty yards away, saw children in the road on both sides of the track, and only a few feet from it, and the motorman knew that there was a school-house at that point, but nevertheless ran over a child by reason of failing at once to get his car under special control,-the question whether he did. what was necessary under the circumstances being for the jury;42 nor because the driver of a horse car failed to stop the car within a distance of from thirteen to eighteen feet from a child who had fallen upon the track. 43

.44

$1428. Care Demanded in Favor of Children Seen Near the Track. This calls up for consideration the question of the care demanded on the part of the driver, gripman, or motorman, in favor of children whom he sees near the track. If he sees them approaching the track in dangerous proximity to it, it will be negligence in him to fail to slacken the speed of his car; and, as he is bound to keep a constant lookout, negligence will be imputed to the company where he might have seen a child coming upon the track in time to have checked or stopped his car so as to avoid injuring the child, if he had been looking. But, in general, he is not bound to take special precautions because children are at play in the vicinity of the track, where their proximity is not apparently dangerous, and where they evince no purpose of thrusting themselves into danger. For example, the gripman of a cable car, proceeding at the rate of twelve miles an hour, who sees children playing in the roadway of the street near the curbstone, is not bound to anticipate that one of them will run suddenly in front of his car, and is not blameworthy because he does not 39 Stabenau v. Atlantic Ave. R. Co., 155 N. Y. 511; aff'g s. c. 15 App. Div. 408; 44 N. Y. Supp. 36.

40 North Chicago St. R. Co. v. Hoffart, 82 Ill. App. 539.

41 Mason v. Minneapolis St. R. Co., 54 Minn. 216; s. c. 55 N. W. Rep. 1122.

42 Oster v. Schuylkill Traction Co. (Pa.), 45 Atl. Rep. 1006.

43 Lavin v. Second Ave. R. Co., 12 App. Div. 381; s. c. 42 N. Y. Supp. 512.

"Tholen v. Brooklyn City R. Co., 151 N. Y. 627; aff'g s. c. 10 Misc. (N. Y.) 283; 63 N. Y. St. Rep. 269, 273; 30 N. Y. Supp. 1081, 1085.

45 Nugent v. Metropolitan St. R. Co., 17 App. Div. 582; s. c. 45 N. Y. Supp. 596.

46

slacken speed in anticipation of such a possibility. He is not bound to bring his car to a full stop, merely because he sees a child five or six years old on the sidewalk, to guard against a similar possibility.*7 Nor is he blameworthy for failing to anticipate that a boy more than eleven years old will, after warning, attempt to cross a street so nearly in front of the car that an accident can not be prevented.48

§ 1429. Injuries to Children Climbing on Street Cars.-Strange as it may seem, the judicial courts seem to be less tolerant of injuries to boys received while trespassing upon street cars than to injuries received by them from street cars when lawfully in the street. Notwithstanding the fact that the company may become responsible to third persons for injuries happening to them in consequence of the mischievous conduct of boys trespassing upon its cars; yet, if the driver of a car finds a seven-year-old boy on his front platform and allows him to ride for a distance, it will be negligence to order him off, or to compel him to get off, without stopping the car.50 One court has gone so far as to hold that if a boy eight years of age is allowed by the driver to get upon the car, he is, while upon it, entitled to the protection accorded to a passenger; so that if, owing to the careless

10 Rack v. Chicago &c. R. Co., 173 Ill. 289; s. c. 50 N. E. Rep. 668; aff'g 69 Ill. App. 656; citing Flannagan v. People's R. Co., 163 Pa. St. 102; Fleishman v. Neversink &c. R. Co., 174 Pa. St. 510; s. c. 34 Atl. Rep. 119; Chilton v. Central Traction Co., 152 Pa. St. 425; Trumbo v. City St. Car Co., 89 Va. 780. But see Oster v. Schuylkill Traction Co. (Pa.), 45 Atl. Rep. 1006.

Gannon v. New Orleans &c. R. Co., 48 La. An. 1002; s. c. 20 South. Rep. 223.

48

McLaughlin v. New Orleans &c. R. Co., 48 La. An. 23; s. c. 18 South. Rep. 703. Circumstances under which not negligence to fail to sound gong to warn children concealed behind pile of lumber: Perry v. Macon &c. St. R. Co., 101 Ga. 400; s. c. 10 Am. & Eng. Rail. Cas. (N. S.) 819; 29 S. E. Rep. 304.

See, for example, Dintruff v. Rochester &c. R. Co., 32 N. Y. St. Rep. 730; 10 N. Y. Supp. 402; aff'd without opinion, 124 N. Y. 647, mem. In this case, which was an action for an injury sustained by a street car running upon the plaintiff while on the street, it was held that evidence that the driver would have been able to control the horses and thus prevent the accident, but for the

fact that the rear brake had been mischievously interfered with by boys; that the usual mode of preventing such interference, the danger of which was matter of common knowledge to all familiar with the operation of street cars, was by tying the brake down; and that the defendant's superintendent knew that the brake of that particular car had been tied down at one time to prevent such interference,-was sufficient to take to the jury the question of negligence on the part of the company. For a

case where a boy intending to take passage, and having money to pay his fare, climbed upon the platform of a car, and the driver, mistaking him for a trespasser, forcibly ejected him, with a review of instructions applicable to such a case.—see Citizens' Street R. Co. v. Wolloeby, 134 Ind. 563; s. c. 33 N. E. Rep. 627.

to McCahill v. Detroit City R. Co., 96 Mich. 156; s. c. 55 N. W. Rep. 668. In such a case it is a question for the jury whether the driver is negligent in ordering the boy to get off while the car is in motion, or whether he should first stop the car and then give the order: McCahill v. Detroit City R. Co., supra.