#### Rummele *v.*Allegheny Heating Co.

In an action to recover damages for injuries to a child six years of age, caused by the alleged negiigence of the defendant, the plaintiff cannot complain of instructions that, as a general rule, “ a child of six years of age, cannot' be charged with contributory negligence. But, in some cases, it is a question for the jury, depending upon the degree of intelligence of the child, and whether it was aware of its danger. I see nothing in the evidence to show that the child was aware of the danger, or was warned of any danger.”

In an action to recover damages for injuries to a child of tender years, disabling him from engaging in certain occupations, there will be no reversal because the court charged that it would not do to base a verdict upon the “ Carlisle tables,” where they were not offered in evidence upon the trial.

Oct. 26, 1888.

Error, No. 143, Oct. T. 1888, to C. P. No. 2, Allegheny Co., to review a judgment on a verdict in favor of the plaintiff in an action on the case by Rudolph Rummele, by his father and next friend, John Rummele, against the Allegheny Heating Co.

The declaration charged defendant with negligently allowing natural gas to escape, and become ignited in a public highway, enveloping the plaintiff in the flames, and inflicting grievous ■ injuries . upon him. Plea, not guilty.

At the trial, it appeared that the plaintiff was a child of six years of age, and that he was injured by burning gas escaping from one of defendant’s natural gas pipes in Allegheny city, on Oct. 9, 188.6.

The facts of the case appear in the following charge of the court, by White, J.:

“ Negligence is not to be presumed but must be proven. The party alleging negligence must prove it. [But proving negligence on the part of the defendant, in actions of this kind, is not enough to enable the plaintiff to recover. There must be negligence on the part of the defendant company which caused the injury, but the plaintiff must be free from negligence on his part which contribu*99ted to the injury, or what is called contributory negligence; and wherever the plaintiff has been guilty of any negligence, which brought on or helped to bring on the accident, the plaintiff cannot recover, however negligent the defendant may have been. The law cannot distinguish and mete out how much the plaintiff and how much the defendant was negligent, and which was most to blame. Therefore, in all cases where the party injured was guilty of negligence that contributed, however slightly, to the injury, he cannot recover. A child of six years of age is not presumed to be guilty of negligence. In fact, contributory negligence cannot be charged to a little child of five or six years. They are not possessed of the thought and intelligence of grown persons, or even of older children, and hence little children are often injured and recover damages where an action could not be maintained by a grown person, or even by a child of ten or eleven years.] [4]

“ The accident in this case resulted from the escape of gas from a natural gas pipe in Allegheny city. The defendant company is a corporation which furnished natural gas for heating purposes in Allegheny city, and on this occasion were making a connection between their main pipe on Washington avenue and a slaughter-house on the side of the street. A trench had been dug from the main pipe across and under the curb, through the pavement and through the wall of the building to connect with the furnace of the boiler, and, from the evidence, there could be but little doubt that, in drilling the hole in the main pipe to make the attachment, the gas escaped, passed along the ditch, which was some two-and-a-half or three feet deep, and probably two feet wide, entered the building and communicated with the fire under the boiler. That, however, is a question of fact for you to determine, as to how the gas took fire, but, it seems to me, there can scarcely be a doubt that the fire originated in that way. There is no other explanation given, and the evidence is undoubted that there was a fire in the furnace underneath the boiler ; whether it was very bright or ‘ dampened ’ fire is hardly material. There was a fire, and it seems to me, from the evidence, that the accident occurred by the escaping gas running along the trench, mingling with the atmosphere, and in that way becoming inflammable, and so igniting from the fire under the boiler. The boy must have been at the ditch at the time of the explosion, — the probabilities are that he fell into the ditch at that moment, though there is some intimation that perhaps he might have been inside it, but there is no evidence to that effect that I recall. He was seen on the pavement, or above, and no witness testified to his being down in the ditch at the time of the explosion. The two boys, one of them the plaintiff, were down in the ditch when first seen, after it. Mr. Patterson, the foreman, says he took him out; Mr. M’Kay says he took him out, — but the boy was taken out from the ditch on fire. Mr. Patterson says that he tried to extinguish the flames on his clothing, and that he himself was considerably burned. *100Then some person else took the boy, and one of the boys, I think the plaintiff, ran out to a vacant lot there, just after the explosion, with his clothing on fire.

“ The explosion of that natural gas caused the injury to the-boy, and he is very seriously injured — disfigured in his face, burned in his hands and the lower part of his arm. His hands are permanently injured, as the fingers cannot be straightened out; I do not know that he can clench his hand. From the testimony of the physicians, he is inj ured for life; his hands will never be so that he can perform ordinary manual labor.

“ The first question is, is the defendant company guilty of negligence which caused the injury, and the question comes, I think, to this : Was it negligence in the company to attempt to drill a hole in their main pipe and allow the gas to escape while that hole was being drilled ? The company is bound to use all reasonable appliances, and to exercise all reasonable care and caution to prevent accidents. They are bound to employ skillful and competent workmen to attend to their work. If they neglect any of these duties, that would be negligence. If they did not exercise the care they should have done in the way of directing how the work should be performed, and entrusted it to a foreman who was incompetent for the business, they are liable; or, if the workman performed the work negligently and unskillfully, although he may have been a skillful and competent man, yet, if he was guilty of negligence in the manner in which he did the work, the company is responsible for his negligence. Undoubtedly, if the gas had been stopped in the main at the time the hole was being drilled, or if some appliance had been used to prevent the escape of the gas at that time, the accident could not have taken place. Under some circumstances, and in some localities, it might not be negligence to allow the gas to escape while a hole was being drilled in that way. If there were no houses near, or if no persons were likely to pass there ; if there was no fire near, no dangerous fire, under these circumstances, perhaps, it would not be negligence to drill a hole in a main pipe, allowing the gas to escape in the meantime. But it may be negligence to do that in a city or upon a thoroughfare where persons are passing continually ; where fire might accidentally be thrown into the escaping gas, or where there is a fire near enough for it to reach — there it would be negligence. I infer from the testimony of Mr. Patterson, the foreman — although the testimony is for you, and you must draw your own conclusion from it — that he knew that there might be danger if the hole in the wall was made before they made the attachment in the main pipe. He said he went into the building and directed the workman there to make the ditch inside, and, after making the ditch, to make this hole in the wall, and he estimated that work could not be done until after he would get the hole drilled in the main, and that they have a valve or something to prevent the escape of the gas as soon as they got the service-pipe into the main; *101the drilling, he thought, would require some temor twelve minutes; he had the hole drilled out, and was just about putting the plug in when the explosion took place. He says that, during the whole of the time the drilling was going on, more or less gas was escaping; as soon as they got through the pipe it began, and increased as they increased the bore, and that if the gas had not taken fire perhaps for a minnte longer, he would have had the plug in, and perhaps no accident would have occurred: Now, if Mr. Patterson knew there was danger from that furnace, and apprehended danger from it, it was negligence not to take all necessary precautions to guard against that danger.

“ If you are satisfied from the evidence that the defendant company was guilty of negligence in any of the respects to which I have referred, [then, was the boy guilty of any contributory negligence ? I have said that a boy of six years of age cannot be accused of contributory negligence. His tender years and want of intelligence will excuse him from being visited with the severe penalty of contributory negligence in case of injury. There may be cases, however, when a child of that age would be guilty of such negligence; a bright, intelligent boy, where he knows there is danger, or where he has been warned of danger, and persists in standing in it, I apprehend, under such circumstances, the boy may be visited with contributory negligence, but I see nothing in the evidence here to show that the boy knew or was warned of any danger on account of the gas. Mr. Patterson says the boys were standing at the side of the ditch, and jumping across it — whether these boys, or some others, it is for the jury to say from the evidence, because it seems there were other boys there, — but boys were jumping across and allowed some bricks to fall down, and the foreman had ordered them away, tnowing some gravel at them. There was no indication or warning of any danger from gas, or that it was a dangerous place. It was to drive them away because some dirt was falling into the ditch. If that was all the warning that was given the boys, and they had no knowledge or intimation of any danger or any.warning of it, then, I think you could not accuse this boy of contributory negligence. Boys, on a street, naturally gather around an excavation of that kind. We cannot say they are guilty of contributory negligence in doing so, — boys of six years of age, and especially so in localities which they pass and repass every day. Then, if this little boy had no knowledge or was not warned of any danger from the gas, you cannot say that he was guilty of contributory negligence because he remained there after being told to go away, if he was ordered to go away simply because he or the others were jumping across the ditch, allowing stuff to fall down.] [5]

“ It is hardly to be presumed that Mr. Patterson or these men themselves anticipated this explosion. Mr. Patterson was in the ditch at the time and was somewhat burned; he said he thought the hole through the wall had not been completed, could not say, but *102supposed at the time it was not. He says he did not suppose that he was in danger at the time.

“ If you find the defendant company guilty of negligence, then you pass to the question of damages. The father would be entitled to damages for what he has lost or may lose by the injury to his son. If he has been put to any expensé for medical treatment for his son, or for services attending him, medicines, anything of that kind, or if he has lost wages by losing time in consequence of being required to wait on him, if the mother and father were burdened with sitting up at nights, and being wearied and worn out by constant attendance upon their son, these become elements in estimating the father’s damages. You must not give the father any damages in any event because of the injury to his son. Pecuniary compensation only is the measure of damages to the father, — just what he has lost or may lose in money. The father is entitled to the services of the boy until he is twenty- one years old, and would be entitled to his earnings. He is bound to give the boy a reasonably good education, and to assist him in some way to the getting of a trade or of some means of getting a living in the world. The father is bound to maintain the boy, whether sick or well, and to provide medical attendance if he is sick. All of these things are to be looked at in estimating the loss the father may sustain. If the boy requires surgical treatment in the future in consequence of these injuries, he would be entitled to what the evidence might show would be proper surgical treatment, and the expense connected with it. However, from the testimony of Dr. Beatty, and even from that of the other physician, it is doubtful whether any surgical treatment would ever benefit the boy. It would be almost folly to go to any expense in that direction.

“ The boy would be entitled to compensation for his pain mental and physical, the physical suffering he endured, the mental agonies he suffered. Of course these are elements which it is difficult to estimate, yet they become elements in estimating damages. No damages should be allowed the boy for any medical attendance or anything of that kind, because, until twenty-one years of age, his services belong to the father, and he is bound to keep him, sick or well, but he is entitled to compensation for the mental agony and suffering that he has, or may endure, and also for his disfigurement. If he is disfigured so that that would be a source of mortification and humiliation to him, that is an element of damage, but the main element in all these cases is impaired power of earning a living in the world. The boy, according to the testimony, cannot pursue many vocations in life, yet for others he may be fitted, as the testimony indicates; for such positions as clerk in a store or things of that kind, he may be competent, perhaps nearly as much so as others who have a better use of their hands. He may not be able to pursue a mechanical vocation such as carpenter or machinist, or many other trades in consequence of this injury, but perhaps earn as much *103money at something else as at one of these trades. That is the main question, the impairment of his ability to make a living. It does not do to estimate it on the footing that he has no ability whatever to makh a living, and that he can never earn anything, because the evidence is that he may be suitable for some purposes, and you can form your own judgment, perhaps, as to that, from seeing and examining him ; — so, for some purpose, he could make something, if not a hill living. [It will not do to take what are called the ‘ Carlisle tables’ and base a verdict upon them. You must take into •account the probabilities of life. Those tables are based upon a philosophical calculation, but the boy may live to be ninety, or he may die at twenty-one;] [6] he may be sick or may not be able to get work half the time; all of these are elements to be considered by you. His father earns, I think, about two dollars a day; that would be about $600 a year, which is all he makes. To allow the boy $10,000, the interest of which would be $600 a year, would be giving him more then his father earns. I merely refer to this to show that basing a verdict upon these tables would be an erroneous way of .getting at it.

“ If you find for the plaintiff, you ought to give what would be, under all the evidence in the case, reasonable and proper. While the boy, if injured permanently, is entitled to compensation — full compensation — yet the verdict ought to be based upon some reasonable foundation, and the reasonable probabilities of the case.” The plaintiff presented the following points:

“ 6. This action cannot be defeated by any pretence that the boy was guilty of contributory negligence. It is a rule of law that a person of his tender years cannot be guilty of negligence, so as to absolve defendant from liability for negligence on its part producing or contributing to the injury.

“ 7. For the same reason, there can be no reduction of the damages because of an alleged neglect of the boy to follow the instructions of Dr. Beatty.”

The court answered the above points as follows :

“ The points are perhaps too broad, under the evidence. As a general rule, a child of six years of age cannot be charged with contributory negligence. But, in some cases, it is a question for the jury, depending upon the degree of intelligence of the child, and whether it was aware of its danger. I see nothing in the evidence to show that the boy was aware of the danger, or was warned of any danger. If the jury so find, then the points are affirmed.” [L 2]

Verdict and judgment for plaintiff for $1660.

*The assignments of error*specified, 1, 2, the answers to plaintiff’s points, quoting the points and answers; 3, that the charge, as a whole, by applying and reiterating the irrelevant doctrine of con- • tributary negligence, and submitting the question whether plaintiff *104was guilty of negligence, led the jury to suppose that, while the plaintiff’s tender years and want of intelligence will excuse him from being visited with the severe penalty of contributory negligence, yet they must allow anything they might, withdut evidence, consider negligent conduct on his part to weigh against his claim for compensation (there was no claim for exemplary damages ); 4, 5, 6, the portions of the charge embraced in brackets, quoting them.

It is stated, in the paper-book of defendant in error, that, after the evidence was all in, and defendant’s counsel had made his address to the jury, and there had been no reference to any tables, plaintiff’s counsel then, in his address, produced a calculation based on what we alleged was the Carlisle tables.

*W.*Macrum, with him *Marshalls & Irnbrie*for plaintiff in error.

The jury should not have been led away from the real issue by the elaborate and reiterated discussion of the inapplicable doctrine of contributory negligence, and by the invitation to consider whether plaintiff was not guilty of some sort of contributory negligence, of which there was admittedly no evidence. It has been repeatedly ruled that “ if the language of the court, taken in connection with the circumstances of the case, may have misled the jury as to the law, or if the tendency of the charge was to mislead them, it is ground for reversal.” Haines *v.*Stouffer, 10 Pa. 363 ; Featherman’s Admr. *v.*Miller, 45 Pa. 96, 104; Foster *v.*Shaw, 7 S. & R. 156; Brobst *v.*Welker, 8 Pa. 467; Bisbing *v.*Third National Bank, 93 Pa. 79; Mich. Bank *v.*Eldred, 9 Wal. 544; Del. & Hudson Canal Co. *v.*Torrey, 33 Pa. 143; Com. *v.*Henderson, 1 P. & W. 401; Axtell *v.*Caldwell, 24 Pa. 91; Deal *v.*McCormick, 3 S. & R. 343 ; McKnight *v.*Ratcliff, 44 Pa. 156; King *v.*King, 37 Ga. 205 ; Reams *v.*Pancoast, 111 Pa. 42 ; Siebeneck *v.*Anchor Bank, 111 Pa. 187.

It was error to exclude the consideration of the Carlisle tables. Shippen & Robbins’s Ap., 80 Pa. 391; Lancaster *v.*Lancaster, 78 Ky. 198; Donaldson *v.*Miss & Mo. R. R., 18 Ky. 280; Simmson *v.*C, R. I. &.P. R. R„ 49 la. 87; Walters *v.*Same, 41 la. 71; Sauter *v.*N. Y. C. & H. R. R. R., 6 Hun, 446, 451 ; Schell *v.*Plum, 55 N. Y. R. 592; Lowley *v.*London & N. W. Ry., I. R., 8 Ex. 221 ; Mills *v.*Catlin, 22 Vt. 98 ; Denver, etc., Ry. *v.*Woodward, 4 Colo. 1 ; Macon, etc., R. R. *v.*Johnson, 38 Ga. 409, 434.

*W. B. Rodgers,*for defendant in error.

Whatever may be said as to whether mortality tables are admissible or not, it has never been known that counsel for plaintiff, in a personal injury case, in the closing address, was allowed to draw out tables, not before offered in evidence or referred to, and argue therefrom.

It is also submitted that in cases for personal injuries, it is well to follow the old landmarks, as laid down in Mansfield Coal & Coke Co. *v.*McEnery, 91 Pa. 185.

*105Nov. 5, 1888.

Per Curiam,

The plaintiff in this case may, perhaps, rightly complain of the jury that the damages awarded to him were insufficient to compensate the damages suffered, but we cannot perceive that he has any right to complain of the rulings of the court.

The judgment is affirmed.