Colgan v. W. P. P. Railway Co., 4 id., 401; Kay v. Penna. R. R. Co., 15 Smith, 276.

There was no proof of any contributory negligence on the part of plaintiff's son, and at any rate his age was such as to prevent contributory negligence being imputed to him. Rauch v. Lloyd & Hill, 7 Casey, 358; Johnson v. W. C. & P. R. R. Co., 20 Smith, 357.

Nor was there contributory negligence on the part of the plaintiff. True, she knew her son was in the habit of carrying water on the cars, but there was no evidence that she knew how he did it. Nor could she reasonably have foreseen and provided against the occurrence of a set of circumstances which without the defendant's gross carelessness could not have resulted in injury to the child. Penna. R. R. Co. v. Ogier, 11 Casey, 72; Gray et al. v. Scott et ux., 15 Smith, 345.

The mere permission of the mother to the son to furnish water was not a sufficiently proximate cause of an accident caused wholly by defendant's negligence, to debar her from recovery. Drew v. Sixth Ave. R. R. Co., 26 N. Y., 49; Cosgrove v. Ogden, 49 N. Y., 255; Ihl v. Forty-second Street, etc., Co., 47 N. Y., 317; Penna. R. R. Co. v. Lewis, 29 Smith, 33.

The Act of April 26, 1855 (P. L., 309), is a supplement to that of April 15, 1851, § 18 (P. L., 674). The intention of the former act was to substitute the personal representatives of the deceased for him. Hence the only contributory negligence involved is that of the deceased, not that of the plaintiff.

Samuel Gustine Thompson, for defendant in error: There was no sufficient evidence of negligence on the part of defendant to go to a jury. Such negligence must be proved by plaintiff, otherwise a nonsuit is rightly entered. Clark v. Ry. Co., 5 Weekly Notes, 119; Heil v. R. R. Co., id., 93; Wilbrand v. Eighth Ave. R. R. Co., 3 Bosw., 314.

The plaintiff was guilty of contributory negligence in allowing a child of such tender years to engage in such a dangerous employment. Kay v. Penna. R. R. Co., 15 Smith, 276; R. R. Co. v. Hummell, 8 Wright, 376; P. & R. R. R. Co. v. Long, 25 Smith, 257; Glassey v. Hestonville, etc., P. R. R. Co., 7 Smith, 172; Smith v. O'Connor, 12 Wright, 223; P. A. & M. R. R. Co. v. Pearson, 22 Smith, 171; Penna. R. R. Co. v. Lewis, 29 Smith, 33.

TRUNKEY, J.-Previous to the accident which caused the death of the plaintiff's son, he and older boys had been in the habit of supplying with water to drink the drivers and conductors, who encouraged them to do this by giving them pennies. At the time the plaintiff's child was at the defendant's cars for that purpose, the plaintiff not only had knowledge of this habit, which began before the summer vacation of the public school, and was continued in the vacation, but she permitted it. She saw the money her child

made, furnished him with cup and pitcher, and cautioned him to be careful in getting on and off the cars.

The child was not seven years of age. He was incapable of negligence, and could not use the care required of a mature person under like circumstances. His business was with the defendant's employees to give them water and receive a reward. This is not the case of a child having occasion to cross the track in going to school, or for other purpose; nor of one that had wandered into the street without the parents' knowledge; nor even of one permitted to play on the street. If it be that the plaintiff's testimony warrants an inference of negligence by the defendants, because their drivers and conductors encouraged this child, with others, to furnish them water, the admitted fact that the child's act was with the plaintiff's permission, authorized the judgment of nonsuit, for the reason given by the learned judge of the Common Pleas.

The argument of counsel certainly is ingenious in support of his proposition that "the negligence of the statutory plaintiff, arising from knowledge or direct act, cannot preclude recovery where there has been no contributory negligence on the part of deceased." However, this is not an open question. In Smith v. O'Connor (12) Wright, 218) it was held that it is not unjust to require a defendant to answer for the mischief done by his wrongful conduct in favor of one who was not in concurrent fault, and that an infant seven years old could not be in such fault. This was in reference to an action by the infant himself; and, respecting an action by a father for an injury to his infant son, Strong, J., said: "In such a case it may be that the father should be treated as a concurrent wrong-doer. The evidence may reveal him such. His own fault may have contributed as much to the injury of the child, and consequently to the loss of services due him, as did the fault of the defendant. He owes to the child protection. It is his duty to shield it from danger, and his duty is the greater the more helpless and indiscreet the child is. If by his own carelessness, his neglect of the duty of protection, he contributes to his own loss of the child's services, he may be said to be in pari delicto with a negligent defendant." These remarks were pertinent to the point decided in Glassey v. Railroad Co. (7 P. F. S., 172), that a father cannot recover for an injury to his infant son which was partly caused by his own imprudent act in failure to perform his paternal duty, and it makes no difference whether the injury of which he complains was to his absolute or relative rights. Referring to that case, the present Chief Justice said it very properly settled "that if the parents permit a child of tender years to run at large without a protector in a city traversed constantly by cars and other vehicles, they fail in the performance of their duties, and are guilty of such negligence as precludes them from a recovery of damages for any injury resulting therefrom. If the case is barely such, the negli

gence is a conclusion of law, and ought not to be submitted to the determination of the jury." (Railway Co. v. Pearson and wife, 22 P. F. Smith, 169.) The principle was repeated in Railway Co. v. Long and wife (25 P. F. S., 257), when it was said: "To suffer a child to wander on the street has the sense of permit. If such permission or sufferance exist, it is negligence."

Most frequently in trials the question whether there was reasonable care on the part of the parent is a fact for the jury; but where the testimony of the plaintiff directly shows his contributory negligence, it is the duty of the court to pronounce the law.

Judgment affirmed.

STERRETT, J., absent.

This case raises two questions of importance, viz.:

1. As to how far plaintiff's right of recovery was barred by her own negligence in allowing a child of such tender years to engage in such a dangerous employment.

2. As to the propriety of granting a nonsuit on the ground that plaintiff's conduct was contributory negligence per se.

Upon these two points it may be said that as to the first the principal case is in accord with the sum of authorities, and as to the second the whole question is somewhat involved in doubt. A brief consideration of the cases will prove the truth of this assertion.

1. It is, of course, admitted on all hands that an infant of very tender years cannot be adjudged guilty of contributory negligence. The following are the latest authorities on this point:

Robinson v. Cone, 22 Vt., 213; Birge v. Gardiner, 19 Conn., 517; Neal v. Gilett, 23 Conn., 437; Bronson v. Southbury, 37 Conn., 199; Washington & G. R. R. Co. v. Gladman, 15 Wall., 401; Sioux City & P. R. R. Co. v. Stout, 17 Wall., 657; Pitts., W. & M. R. R. Co. v. Caldwell, 74 Pa. St., 421; Phila. & Reading R. R. Co. v. Long, 75 Penna., 257; State v. Balt. & O. R. R. Co., 24 Md., 84; Balt. C. P. R. R. Co. v. McDonnell, 43 Md., 534; Weick v. Lander, 75 Ill., 93; Rockford, R. I. & St. L. R. R. Co. v. Delaney, 82 Ill., 198; Chicago & A. R. R. Co. v. Becker, 84 Ill., 483; O'Flaherty v. Union R. R. Co., 45 Mo., 70; Schmidt v. Mil. & St. P. R. R. Co., 23 Wis., 186; McMillan v. Burlington & M. R. R. Co., 46 Iowa, 231; Brown v. European & N. A. R. R. Co., 58 Me., 384; Govt. St. R. R. Co. v. Hanlon, 53 Ala., 70; Norfolk & P. R. R. Co. v. Ormsby, 27 Gratt., 455; Daniels v. Cleg, 28 Mich., 32; Elkins v. Boston & Albany R. R. Co., 115 Mass., 190; Reynolds v. N. Y. Cent. & Hudson River R. R. Co., 58 N. Y., 248; Casey v. N. Y. Cent. &. H. R. R. R. Co., 78 N. Y., 518.

Although in every case the question whether the child is of sufficient age and mental capacity to be found to take care is for the jury under the instructions of the court.

Ewen v. Chicago & N. W. R. R. Co., 38 Wis., 613; McMahon v. N. Y., 33 N. Y., 642; Ihl v. Forty-second St. & S. St. F. R. R. Co., 47 N. Y., 317; Reynolds . N. Y. Cent. & H. R. R. R. Co., 58 N. Y., 248; Ostertag v. Pacific R. R. Co., 64 Mo., 421; Nagle v. Allegheny Valley R. R. Co., 88 Pa. St., 35; Haas v. Chicago & N. W. R. R. Co., 41 Wis., 44; Railroad Co. v. Gladman, 15 Wall., 401; Lynch v. Smith, 104 Mass., 52; Lane v. Atlantic Works, 111 Mass., 136; Elkins v. R. R., 115 Mass., 190; Daniels v. Cleg, 28 Mich., 35; Hunt v. Greer, 72 Ill., 393; Paducah R. R. v. Hoche, 12 Bush., 47. And if they are of opinion that the child is of sufficient age and capacity to take care and has not done so but has been negligent, then he himself is precluded from recovering for any injury to himself occasioned by such

negligence. So also his parents or other representatives are equally precluded in case they bring suit for loss of services or by virtue of statutory provisions for injury resulting from his death.

Cumberland & P. R R. Co. v. State, 37 Md., 156; B. & O. R. R. Co. v. Sherman, 30 Gratt., 602; Darling v. Williams, 35 Ohio St., 58; Willetts v. Buffalo, etc., R. R. Co., 14 Barb., 585; Rowland v. Cannon, 35 Ga., 105.

If the negligence in question be, however, not that of the child but of the parent in allowing the child to wander at large, a very different question arises.

The authorities generally admit, and the principal case is in consonance with them in deciding, that the parent's negligence presents an effectual bar to any recovery in a suit brought by him for injury done his child.

Glassey . R. R., 57 Pa. St., 172; Pittsburg R. R. v. Pearson, 72 Pa. St., 169; Bellefontaine R. R. v. Snyder, 24 Ohio St., 670; Jeffersonville R. R. v. Bowen, 49 Ind., 154; Hunt v. Greer, 72 Ill., 393; Albertson v. Keokuk & Des Moines Ry. Co., 48 Iowa, 292.

Suppose, however, the suit to be brought by the child who has been injured, then a conflict of authority at once arises. It is, on the one hand, said that the negligence of the parent may be imputed to the child, and that thus recovery may be defeated.

Singleton . E. C. R. R. Co., 7 C. B., N. S., 287; Waite v. N. E. R. R., 2 B. & E., 719; Morgan v. Atherton, L. R., 1 Exch., 239; Brown v. R. R., 58 Me., 384; Leslie . Lewiston, 62 Me., 468; Holly v. Gas Co., 8 Gray, 123; Callahan . Bean, 9 Allen, 401; Wright v. Street R. R., 4 Allen, 283 (but see Lynch e. Smith, 104 Mass., 52); Mulligan v. Curtis, 100 Mass., 512; Hartfield . Roper, 21 Wend., 615; Lehman v. Brooklyn, 29 Barb., 234; Mangum v. Brooklyn City R. R., 36 Barb., 529; Bank v. Broadway R. R., 49 Barb., 529; Flynn e. Hatton, 4 Daly, 552; S. C., 43 How. Pr., 333; Morrison v. R. R., 56 N. Y., 302; Ross v. Innis, 26 Ill., 259; Chicago v. Starr, 42 Ill., 174; Pitts., F. W. & C. R. R. Co., v. Vining, 27 Ind., 513; L. &. I. R. R. v. Huffman, 28 Ind., 287; Jeffersonville R. R. v. Bowen, 40 Ind., 545; Hathaway . R. R., 46 Ind., 25; Ewen v. R. R., 38 Wis., 613; Brown v. Maxwell, 6 Hul., 92; Munger. Tonawanda R. R. Co., 4 N. Y., 349; Willetts v. Buffalo, etc., R. R. Co., 14 Barb., 585; Burke v. Broadway & Third Ave. R. R. Co., 43 How. Pr., 333; Bulger . Albany R. R. Co., 42 Ñ. Y., 459; Louisville P. C. Co. v. Murphy, 9 Bush., 522; Bannon v. Balt. &. O. R. R. Co., 24 Md., 108; Stillson v. Hannibal, etc., R. R. Co., 67 Mo., 671; Cauley v. Pitts., C. & St. L. R. R. Co., 9 Weekly Notes of Cases (Phila.), 505; Chicago R. R. v. Stratton, 78 Ill., 88.

And this is now the general rule, though there are not lacking authorities to the contrary.

Daley v. Norwich R. R., 26 Conn., 598; Boland v. Miss. R. R., 36 Mo., 490; Whirley. Whittemore, 1 Head., 620; Robinson v. Cone, 22 Vt., 213; Bellefontaine R. R. Co. v. Snyder, 18 Ohio St., 399; S. C., 24 Ohio St., 670; Norfolk, etc., R. R. v. Ormsby, 27 Gratt., 455; Walters v. R. R., 41 Iowa, 71; Isabel v. R. R., 60 Mo., 475.

2. As to the question whether the act of plaintiff was contributory negligence per se, so as to warrant the court in granting a nonsuit and taking the case from the jury.

Upon this point the case is rather aside from the drift of authority. In the following analogous cases the conduct of the plaintiff was held not to amount to contributory negligence per se, but only to constitute evidence of it which should be submitted to a jury.

Lovett v. R. R., 9 Allen, 357; Mulligan v. Curtis, 100 Mass., 512; Lynch t. Smith, 104 Mass., 52; Oldfield v. R. R., 14 N. Y., 310; Drew v. R. R., 26 N. Y., 49; Dauns v. R. R., 47 N. Y., 83; McMahon v. R. R., 39 Md., 439; Karr . Parks, 40 Cal., 193; Daniels v. Cleg, 28 Mich., 33; Schierhold v. R.

R., 40 Cal., 447; Cosgrove v. Ogden, 49 N. Y., 255; Barkesdale v. R. R., La. Ann., 180; Fallon v. R. R., 64 N. Y., 14.

33

But other authorities, particularly in Pennsylvania, are quite in keeping with the decision in this case.

Morrison v. R. R., 56 N. Y., 302; Phila., etc., R. R. v. Long, 75 Pa. St., 257; Penna. R. R. Co. v. Lewis, 79 Pa. St., 333; Pitts., etc., R. R. v. Pearson, 72 Pa. St., 169; Kay v. R. R., 65 Pa. St., 269.

But

As a rule it may be said that the Pennsylvania authorities go farther than those of any other state in holding given states of fact to amount to contributory negligence per se which will warrant the court in taking the case into its own hands and so removing it from the province of the jury. This line of decision is sincerely to be regretted. It is true it accomplishes the ends of abstract justice in many cases by depriving the jury of the power of exercising its usually biassed judgment against railway corporations. nothing, not even this, can justify the removal from the jury's consideration of questions which the principles of the common law seem to dictate should be submitted to them. If the courts would confine their granting of nonsuits and giving binding instructions to those cases where no reasonable men could differ as to the plaintiff's conduct amounting to contributory negligence, all would be well. And this is what they profess to do. It is to be feared, however, tha they sometimes overstep this mark. In the multiplicity of new combin tions of circumstances arising, there are too frequently instances where the judicial mind is apt to take its own view of the plaintiff's action and decide accordingly, without remembering that the minds of others may be differently affected. Too great care cannot be taken by the bench not to transcend in this respect the limits which the law and reason alike impose upon them.

MICHAEL HANLON

v.

SOUTH BOSTON HORSE RAILROAD COMPANY.

(129 Massachusetts Reports, 310.

September 8, 1880.)

In an action against a street railway corporation, a declaration alleging that the plaintiff was injured by a car of the defendant by being carelessly driven upon and over him, is not supported by proof that the plaintiff was injured by another car, not carelessly driven, in attempting to escape from a car which was carelessly driven.

In an action against a street railway corporation, for an injury caused by a car being carelessly driven upon and over the plaintiff, the fact that, at the time of the injury, the car was being driven at a rate of speed prohibited by a city ordinance, although evidence of negligence on the part of the corporation, is not conclusive evidence of such negligence. J. A. Maxwell, for the plaintiff.

J. G. Abbott (H. E. Bolles with him), for the defendant.

COLT, J.-The plaintiff in his declaration alleges that he was injured by a car of the defendant company, which was carelessly driven upon and over him. The case appears to have been tried upon this allegation. But in the closing argument, it was first contended in behalf of the plaintiff that, if a car on one of the double