The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1896-03-05
JUDGE WILLARD'S OPINION
Ia the Case Of Henne Against the
Peoples Street Railway Co.
DEFINES NEGLIGENCE CLEARLY
Judgment Of the Lower Court Was AT.
firmcd-licune Recovered SITS for
the Death Of His Child by .
West Side street Car.

West side Street Car.
Judge Willard, of the Superior court,
has filed his opinion in the case of AL
bert Henne against the Peoples Street
Railway company of LuZerne county.
The action of the lower court was sus-
tanned by the higher tribunal The
verdict of the jury was in the sum of
SI15 for the plaintiff. The opinion gives
a history of the case. 1t is as follows:
. Cases involving the question negligence
depend upon and must be governed by
the peculiar facts in each particular case.
In many cases under undiSputed facts II
is the duty of the court to declare the
law without reference TO jury, while IN
others ii il for the jury, under the direc-
ton of the court to determine whether
acticnable negligence has been proved or
not. The iirst question submitted TO the
jury by the learned judge in the court
below was whether the appellant was
guilty of negligence. The evidence on the
part of the appellant was that while the
motorman was attending to his duties and
observing the track before him the chili
oi appellee suddenly darted Grom behind
Il pile of building material placed upon
the strreD upon the track unobserved by
the m0torman and 40 close 10 the moving
ear that h- was una BILE to stop IL and the
child Was unnvoidably run over and Killed.
TEST MONG FOR APPEIl-r..
The testimony on the part Of the appellee
showed that the motorm.in. at the time
uf the accident and Immediately before.
was Engaged in conversation with a per
son in the cab occupied by the moiorman;
that this person obstructrl the view IRON
the cab at the window on the side oi IN"
track where The child Was killed. The
child was also seen by another witness
ON tn" side of tn" track in iul view from
forty iw 90 sixty ioOI feet in FROM ol the
ear immediately before the accident. II
was also proved that the ear was actually
stopped within ten lVI feet from the time
of the application of the brakes. tn't+r
this testimony the question OF appellants
negligence Was properly, lalrly ana M
partially submitted to the jury. and 10y
their verdict they established the facl
hat the cab Of the uu'orinan * a place
provided by his employers for MIN alone;
where it Is his duty 10 ubsrrv, the track
and all INSTRUCTIONS thereon: nat talking
;nd laughing wih $llrn E"rSuis, when he
should nave been attending TO his duties
witt his ey" upon the track, was in-N-
cuSable negligence resulting in the crush
ing oul of II human life for which the
appellant is liable to respond IN damages.
The second question raised by the rec
ord Is whether the judge erred in sub
mlting the question of cuntributory neSii-
Srncr On the part OF appellee to tn" jury.
The child killed by appellants car was :
years and . months old AT the time of
the accident. \ short time before she
was at her fathers table eating dinner
with the family. The appellee was en-
gagged as Il laborer in IL brewery at moder-
ate wages. Before the child left the table
the father finished his dinner, passed ont
OF the house through his back yard 10y
back gate TO his place of work at the
brewery. As he passed out he secured and
fastened this gate with a rope used Tor
that purpose. About the time he arrived
at the brewery he was informed by u mes
senger that his child was dead.
WENT TO GET SOME CLOTHES.
Soon after the father left the house the
mother assisted the child down from the
table and went upstairs to get some
clothes for the child for the purpose OF
dressing her 10 take her out. When the
mother went up stairs she left the child
in the room with the mothers sister, who
was in charge of Il younger child of the
appellee. In the kitchen, between the
dining room where the child was left
and the back yard was Il hired girl.
The mother remained upstairs about
three CD minutes and on her return with
the chld's clothes she found her gone: she
could not find her in the house, went TO
the back yard and found the gate open;
she went out of the gate through Il court
and along Seventh street to the street car
track on West Lackawanna avenue and
arrived there just at the instant her child
was killed
These facts. thus stated nearly in the
language of appellants counsel. do not
establish case of parents allowing or
permitting a child of tender years TO stray
upon the public streets unattended. The
most that can be said of this case Is that,
governed hy u childish impulse, this child,
years and months old. suddenly left
her fathers house and by a strange fatal
ity placed herself upon this railroad track
and through the inattention and care
lessness of the person in charge of the
car the child was killed. There is no rule
of human conduct that called upon that
mother 10 keep Il constant eye upon the
child in her own house. nor was she called
upon, (aS her husband was circum-
stanced to hire person TO do 80 for her.
Neither was she or her husband obliged
to stand at the back gate and see that
no one united its fastenings. nor were they
obliged 10 place "A sentinel AT the gate.
Under all the evidence and circumstances
of the case it would have been manifest
error for the court 10 have refused to sub
init the question of cOntributory neSii-
gence on the part of the appellee to the
Jury. The case Of John vs.. Railway, l6O
Pa. 6i7. does not rule this case. There.
"A child twenty (e0) months old was al
lowed to pass out through the front door
past it's mother through the front yard.
over the sidewalk onto Il railroad track
Immediately in front OF the house before
the face and eyes of its mother. without
notice on her part. where II was killed
In her presence ana view.
NO WAY RESEMBLES THIS.
After reci;ing the facts of the case a:
bar II H. sufficient to say that that cas-.
in no way resembles this. There the neg
ligence of the parent was self evident .
here in our opinion, there was nothing In
the care of this child that amounted to
negligence on the part Of its parents. At
all events the question was fairly sub
mitted to the jury and under proper in
structions as to the law they found that
there was no want of reasonable care for
this child on the part of her parents. To
have done otherwise. on the part of the
court below. and TO have held as a mat
ter of law that the parents were guilty
of contributOry negligence would have
been carrying the contention of the APP
pellant beyond any reasonable limit here
tofor- prescribed as the correct rule by
the decision of any appellate court to
which our attention has been directed.
The disposition of the case in the court
below is fully sustained in Philadelphia
and Reading Railroad company W. Long
and wife. a. Pa. eII: Pennsylvania com
pany W. Jones and wife. 81 Pa. 1871:
s S'hnur W. Citizens Traction company. Ii.
Pa. -: puns"ath AMI wife vs.. pttsburg