#### Pennsylvania Company *versus*James and Wife.

1. In a suit by father or mother for the death of a child, contributory negligence of the parent is a defence.

2. In a suit by a child of tender years for personal injury, the defence of contributory negligence will not avail.

3. A railroad ran on its own property, through a city, close to an iron mill, at which there was no crossing; an ordinance of the city, by virtue of its' charter, forbade trains running faster than five miles an hour, and required whistles and bells to be sounded; a workman in the mill, in the evening whilst it was not working, in the performance of his duty, came to the mill to put sand into the furnace, taking with him his child nineteen months old, and allowed it to wander through the mill whilst he was working; a train passed on the road at twenty-five miles an hour, standing cars being between it and the mil 1, within fifty feet of the moving train ; the child came from behind the standing cars, was struck by the engine and killed. If the train had been running at five miles per hour it could not have been stopped after the child was seen. The evidence was conflicting as to sounding of whistle and bell. *Held,*that under the facts the question of contributory negligence was for the jury.

4. A city has power to pass ordinances for regulating the running of trains *195through a city, although the places be not on the lines of streets, and is not confined to crossings.

5. The? safety of a dense population is to be guarded by the police power of a city, even though it may be exercised within the dwellings, lots, and private ways of, ci tizens.

6. A. person being of sound mind, and having reached the years of discretion, who ventures on a railroad track does so at his own peril; he has no right to be there. *Per Ewing, P. J.*

7. In this case no negligence is attributable to the child; his helplessness and the circumstances of the case impose on the parents the duty of carefully watching and providing for his safety, and if their failure contributed to his death they could not recover. *Id.*

8. The duty of paternal protection is imperative; the child being on the track, without a protector, was presumptive evidence of entire neglect of that duty. *Id.*

9. The measure of damages was the mere pecuniary loss to the parents ; confined to direct pecuniary loss, funeral expenses, doctor’s bill, necessary loss of time, present probable value of the service of the deceased until twenty-one years of age, less the cost of maintenance' and education, allowing for probable sickness and other casualties. *Id.*

October, 29th, 1874.

Before Agnew, C. J., Sharswood, Williams, and Mercur, JJ7

Error to the District Court of *Allegheny*County, of. October and November Term, 1873, No. 198.

This was an action on the case brought July 15th, 1873, by Benjamin James and Maty James his wife, against the Pennsylvania Company, assignee of the Pittsburgh and Cleveland Kailroad Company. The action was to recover damages for causing the death of the child of the plaintiff, the child having been struck by a locomotive engine of the defendants; the accident occurred June 26th, 1873.

The plaintiff, the father-of the child, was a “heater” in the Pittsburgh Forge and Iron Company’s mill in Allegheny City, about 300 feet west of Veruer Station, which is on the north side of the Pittsburgh, Fort Wayne and Chicago Kailway, over which the trains of the defendants ran; the mill was ou the south' side of the railroad. The track of the railroad on which the train was passing was about 11 feet from the mill; between it and the mill there was a side track of about 4 feet wide belonging to the mill, and near to it; about 350 feet west of the mill was a public street crossing. The child was about 19 months old ; he was on the track on which the train was moving directly opposite the mill; it was about 8 o’clock in the evening, but not quite dark.

Prior to the 15th of April, 1873, the city of Allegheny enacted an ordinance under the authority of their charter, forbidding any railroad company from running locomotives, etc., through the city, without causing bells to be rung oji each locomotive while in motion, and making it unlawful for such locomotive to run at a speed exceeding 5 miles an *196hour. At the time of passing the ordinance the place where the accident occurred was in the township of St. Clair, beyond the city limits. On the 15th of April, 1873, an act of Assembly was passed annexing McCl ure township to the city, and by express terms all the laws and ordinances of the city were extended over the territory annexed.

The case was tried May 6th, 1874, before Ewing, P. J.

W. Porter, superintendent of the mills; testified that the plaintiff’s house was about four hundred yards from the mill. He saw the train at the time of the accident; it was the Cleveland train, going east. He did not see the accident ; saw the child afterwards; it was lying on the railroad, between the two tracks ; it looked like a little bundle. There is no way for the people to travel up and down there except along the line of tbis railway; it was the railway company’s private property; people have no right to travel on it; they have been in the habit of travelling on it since the mill was established, nine years previously. The mill company owns the land on both sides; the railroad company had' the right of way through; the mill company bought subject to the right of way; it was about half a mile to the city line; there was no direct road from Jack’s run to the mill; the railroad occupied all the ground ; when the child was killed the train was running about twenty-five miles per hour. The train was the usual evening train for Pittsburgh; it was dusk, not dark. People walk on the railroad in preference to other roads ; it is drier. The mill company have a little crossing over the tracks to get coal, sand, etc., for the mill; no public road at- the place; the train does not stop at Verner Station; heard the whistle not more than ten or twenty yards from where the child was killed.

The plaintiff testified: He went to work at 4 o’clock a.m , and quit from 1 o’clock to 3 o’clock p.m. ; about 7 or 8 o’clock, about dusk, took the child with him to the mill, where he went to put sand in; the works were still ; he had put in three or four shovels when he heard the rattle of the cars, turned and found that the child had got away on the road; plaintiff ran forty or fifty feet, and, when he got within ten feet of him, the engine struck the child, and “ in a second he was gone.” There were cars on the track next to the mill; from the place where plaintiff had been shovelling, the door was twenty-five or thirty feet; when he got to tibe door the train was thirty to forty feet off; heard no bell rung; he put the boy on the stand in front of the furnace; did not. see him till he saw him on the track ; he was at plaintiff’s side; could not see him and work at the same time; many trains pass during'the day. From the time he heard the whistle he could *197not have saved the child if the train had been running even at five miles per hour; could have done so easily after he saw the engine ; saw it before he heard the whistle ; could have taken the child from the track after he saw the train if it had been running at eight miles.

There was evidence that there was a crossing at Verner Station, a public avenue — Preble—on the south side of the track; residences there; mill men lived around there ; platforms were along the railroad track on the north side for people to get on and off the trains. People mostly cross the track below the public road-crossing and station-house.

A number of witnesses testified that they did not hear the whistle or bell until about the time the child was struck; that they had been where they would have heard them if they had sounded; they stated the speed at which the train was running variously from twenty miles to thirty-five miles per hour.

There was evidence also bearing upon the measure of damages

For the defendants the engineer testified that he whistled several times; it was nearly dark as he approached the mill; he saw something that he could not distinguish, — whether it was a dog ora child, — coming from the end of a car standing opposite the mill. But, about thirty or forty.feet from it, it came in front of the head-light. He then thought it was a child; gave two or three short whistles, and stopped as soon as he could ; was running on schedule time, about twenty-five miles an hour. If the child had realized the situation it could have got off. If the train had been going at five miles an hour when he first saw the child it would have been struck unavoidably. He slackened at Jack’s run to pass the crossing at Verner Street; usually commenced to check up at the mill; could stop in a distance of two hundred yards.

Both parties submitted points which it is not necessary to specify, the matters presented by them and passed upon by the Supreme Court being contained in the charge of the Court below.

The Court charged:

“ .... To entitle themselves to a verdict in their favor the plaintiffs must have established to your satisfaction two general points:

1. “ That the defendant company or its agents were guilty of negligence which essentially contributed to the injury resulting in the death of the boy.

2. “That plaintiff’s have not been guilty of negligence which contributed to the injury.

“ It is not sufficient to find that the defendants were guilty *198of some negligent act or acts in running tlieir train that evening. It must also appear that this negligence, if any, contributed materially to the injury.

“ The plaintiffs claim that the defendant company was guilty of negligence in running their train at a very high rate of speed, and in failing to give proper signals of its passage through the limits of Allegheny City, past a large manufacturing establishment, in a thickly populated neighborhood, and close to a public street crossing, and to a station still closer, where people frequently pass at all hours. This the defendants deny, claimiug that they exercised ordinary care, and that they were under no obligations to run at a low rate of speed on this part of their road; and they also claim that they gave the necessary signals.

“ *We*have excluded evidence offered by the plaintiffs to show that people in the vicinity claimed and exercised the right to travel along the railroad tracks between Verner •Station and Jack’s run, and we now instruct you that the track at the point where the accident occurred was not a public highway, in the sense of the public having a right to travel it on foot or horseback, or in ordinary vehicles. The company are not bound to expect that persons will be on their traes at that point. The child was a trespasser on the track.

*31*“ The counsel for defendant .has submitted to us numerous points in regard to the effect of the acts of Assembly and the ordinances of Allegheny City, regulating locomotives and trains within the city limits, and asking us to instruct you that these ordinances and regulations are unreasonable, illegal, and void. This we decline to do. *We*are of opinion that the legislature had the power to authorize the city councils to pass ordinances regulating these matters in the city limits, aud that the legislature extended this ordinance to that portion of the city in which the accident occurred, and we aré unable to say that the regulations prescribed are not necessary and a reasonable precaution for the security of the lives of citizens in a populous district, with an open railroad track on a level with the houses and streets, where many people will recklessly go, and where children are liable to stray, even when guarded with vigilance and extreme care. And in answer to all these points of defendants’ counsel, we say to you that by acts of Assembly the city of Allegheny was invested with power to regulate the running of locomotive engines through the limits of the city, to regulate their speed, and to exercise every other power in reference to the running of cars and use of locomotives and railroad tracks necessary to secure the safety of citizens’ lives and property, *199and the free and unobstructed use of the highways of said city. In pursuance of this power the city councils passed and promulgated an ordinance providing among other things as follows: ‘ It shall be unlawful for any railroad company to run locomotives or trains of cars through said city without, causing a bell to be rung on each locomotive while in motion, and the speed of said train or locomotive shall not in any ease exceed five miles per hour.’

* * *?!<♦& >íC

“These acts of Assembly and ordinances imposed a duty on the defendants in running their trains through the city in conformity with the provisions of the ordinance. And the violation of the terms of the ordinance in running their locomotives and trains through the city at a high rate of speed, say twenty to thirty miles an hour, and the neglect to ring a bell on the locomotive while so running, would be negligence, and the defendant would be liable for an injury caused by such negligence,-unless there was concurring negligence on the part of the plaintiffs which contributed to the loss.

“ Put, as before stated, negligence of the company is immaterial, if it did not contribute to the loss. The engineer and conductor both testify that the bell was rung from Jack’s bridge, the city line, up to the point of accident. Plaintiffs’ witnesses deny it, or say they did not hear any bell. If the accident would have occurred with the locomotive going at the rate of five miles an hour, or about that, as the company could not reasonably be held to an absolute precise limit of that rate, and, with the bell rung as required, then the negligence of the company.in running at the higher rate did not cause the accident, and your verdict should be for the defendants. You will recollect the testimony. The engineer tells you that ears were standing on the side track, and that the child emerged from the front of these ears, that he was thirty to forty feet from it when he first saw the child; and that even had his speed been at the rate of five miles an hour it would have been impossible to have prevented the accident after he saw the child. He also says that he instantly sounded the alarm whistle, Mr. James, in his testimony, very candidly says, that after the whistle sounded he could not have saved his child even if the train had been going at the rate of five miles per hour; but he says he heard the rattle of t-he train, looked, and had started before the whistle sounded, and that if the train had been going at the rate of five miles an hour at that time he could have saved his child, and that the whistle did not sound till after he had started for the boy..

“ The next question for you to pass upon, if you should *200find that the defendants were guilty of negligence which materially contributed to the injury is, were the plaintiffs guilty of negligence which also contributed to the injury? If they were they cannot recover.

“ If the person killed by this accident had been an adult, we would have no hesitation in instructing you as a matter of law that the plaintiffs could not recover. Whoever, being of sound mind and having arrived at years of sound discretion, ventures on a railroad track at such a place, does so at his own peril. lie has no right to be there, and if injured he and his family must take the consequences of his own negligence, unless the injury has been a wanton oue. There is no evidence of any wanton act on the part of the company in this case. The boy killed in this accident had not knowledge or discretion to avoid danger; consequently,' no negligence can be attributed to him. But the helplessness of the child and the circumstances of the case imposed on the parents the duty of carefully watching and providing for the safety of the child, and if their failure t'o perform all their duty contributed to the death of the child, their negligence will prevent their recovery. Negligence is a relative term. .Great peril requires great care, skill, and caution. The act that in some circumstances would be prudent, would in other and very perilous circumstances be gross negligence. Negligence may be’defined as the failure to exercise the care, skill, and caution which a prudent man would ordinarily and reasonably exercise under the "particular circumstances.

“ Counsel for defendant has asked us to say to you as matter of law that the plaintiff, Mr. James, was guilty of negligence in permitting his boy to be from under his eye and go on the railroad track. This we decline to do, and we leave you to decide the question under all the evidence of the case.

“ In answer to the 13th point by defendants’ counsel we instruct you that the duty of paternal protection is legal and imperative, and that the presence of a child of the age of the deceased, without a protector, upon the tracks, is presumptive evidence of an entire neglect of that duty. The child having been so on the track, the burden of proof is on the plaintiffs to show that it was there without negligence on their part. The testimony of Mr. James himself is all that you have as to the manner in which the child got there. Was it negligence in him to take the child with him in his visit to his furnace in the mill, provided he took proper care when there? You will take all the circumstances into consideration, the proximity of the railroad tracks, the fact that *201Mr. James must have known that trains were frequently-passing, the fact that this train was on or near its usual time, the age of the child, and all the circumstances. While we are not willing to say, as a matter of law, as requested by defendants’ counsel, that it was negligence on the part of the father to permit the child to be from under his eye for a moment, we do say that the circumstances demanded extreme vigilance" on the part of the parent......' The measure of damages in this case is mere pecuniary loss to the parents. It is confined to the actual outlay or direct pecuniary loss, namely, the funeral expenses, doctor bills, if any, and the necessary loss of time, which the father says was four days from his work, and the present probable value, to be determined by the evidence, of the service or earnings of the deceased, from the time of his death up to twenty-one years of age, less the probable cost of his maintenance and education, and making reasonable allowance for probable sickness and other casualties. You cannot allow anything for the suffering of the child, nor for the mental' suffering of the parents, or any other suffering other than the pecuniary loss.”

The verdict was for the plaintiff for §1600.

The defendants sued out a writ of error, assigning,- in a number of specifications, the charge of the Court for error,

*S.*Schoyer, Jr., for plaintiffs in error.

At the place of the accident the tracks were on the private property of the defendants, with no crossings ; any person crossing would be a trespasser. Until the annexation, the company, without question, might speed their trains as suited t-heir business. Afterwards there was no promulgation of the ordinance in relation to the annexed district. Its violation, therefore, was not negligence *per se;*all that would result from it ivas that the city could enforce the penalty. The company were not bound to guard against the carelessness of a father allowing his infant child to wander about an empty mill, and to a track where there was no crossing to call for watchfulness. The ordinance is uot applicable when the trains are run over the company’s private property, but only where there are public streets and highways. The company is a purchaser and no one can interfere with their exclusive possession: Railroad *v.*Skinner, 7 Harris 298. The char;er limited the legislative power "in this respect to highways. The ordinance itself is unreasonable and therefore void: Goddard’s Case, 16 Pickering, 127; Commissioners of Northern Liberties *v.*Gas Company, 2 Jones, 319. The company OAved no duty to the child in that locality, and therefore *202is not liable: Flower *v.*Pennsylvania R.R., 19 P. F. Smith, 215 ; Glassey *v.*Hestonville Passenger RR., 7 Id., 172.

*R. Pollock*and *A. M.*Watson, for defendants in error.

The standard of duty here was a shifting one, and therefore the question of contributory negligence was for the jury. Glassey *v.*Hestonville Pass. Railway, *supra ;*Pass. Railway *v.*Pearson, 22 P. F. Smith, 171; Kay *v.*Pennsylvania Railroad, 15 Id., 273. The legislature can pass laws to provide for the public safety anywhere: Pennsylvania Railroad v. Riblet, 16 Id., 168.

Judgment was entered in the Supreme Court, November 9th, 1874.

Per Curiam :

A distinction is taken between the case of a father or mother bringing an action for the death of a child, and a child bringing an action for personal injury. In the former the contributing negligence of the parent may be used in defence, while in the latter case the negligence of an infant of tender years will not be available. Clearly' this was not a case where a court could say there was negligence *per se,*and thus withdraw the'case from the jury. The conduct of the father, and all the. attending circumstances were such as necessarily went to the jury to enable them to determine whether the father by his conduct in fact contributed to the death of his child, and was thus guilty of negligence. We see no error in submitting the facts to the jury. If they erred we cannot correct their mistake.

On the other questiou we perceive no good ground to say that a city has no 'power to pass an ordinance to regulate the speed of trains within the city limits merely because the place of the accident did not happen within the lines of a street. Where, as in this ease, a railroad passes through a populous city, crossing its streets at various points, the exercise of the police power would be of little service to the public, if it could be only at the street crossings. It may be said that the public has no right to inhibit the speed of the train within the company’s own domain, provided the company checks up and crosses the street at the legal rate of speed. But in the exercise of police power such as this, the actual state of affairs must be taken into account; thus not only the difficulty, perhaps impossibility, of reducing a speed at the rate of twenty-live miles an hour to four or five miles an hour in the short space of three or four huudred feet, but also the fact that (though without right) many persons are found walking upon the tracks of the railroad at all hours. Now as a matter of police regulation it will *203not do to answer, let the people, who go where they have no right, take care of themselves. The police power is enacted not only for those who exercise a proper degree of reflection, but for those who may not. Life is too sacred to place its security on a basis so uncertain. Even the discreet and reflecting make mistakes of judgment, as well as of right; while infants aud others may not judge at all. Therefore the safety of a dense population is to be guarded by the police power in a great city, even though in doing this the power may be called into exercise within the dwellings, the lots, and the private ways of the citizens. We see not that a railroad company has greater rights within the city than others.

Upon the whole case we discover no error which ought to reverse this judgment.

Judgment affirmed.