Opinion by
Mobbison, J.,
On November 29, 1902, about 9:40 A. M., Robert Bracken, aged twelve years and seven months, was instantly killed at the Fairfield-avenue grade crossing, in the suburbs of the city of Johnstown, by one of the defendant’s trains. The boy was playing near the defendant’s tracks, when Andrew Dennison, driving a one-horse wagon, attempted to cross the four main tracks of defendant company, and one of the Cambria Steel Company. The boy jumped on the rear end of the wagon, although told by Dennison to keep off, for the reason that he had a heavy load of sand which was rather too much for his horse. Two companions got on the wagon with the boy, but they saw the train approaching and escaped, and it appears that they did all ■ that they could to warn Bracken; but he remained on the load of sand, with his back to the locomotive, and was beckon[28]*28ing to his companions to follow him. The express train which-killed the boy was going east on track No. 2, and it demolished the wagon. Mr. Dennison and the horse escaped. There were what are termed safety gates at this crossing, but the gateman either negligently, or because no proper warning was given of the approach of the train, raised the gates and permitted a team just in front of Dennison to enter the crossing, and Dennison followed.
Hudson C. Bracken, the father of the boy, brought this action, and recovered a verdict and judgment, without his wife, the mother of the boy, being made a party to the suit, until after the recovery, when her name was brought upon the record by amendment. The verdict in favor of the plaintiff is $1,250.15.
The two prominent questions in the case are, of course, whether the defendant company was guilty of negligence and the alleged contributory negligence of the boy.
The first assignment of error is: “ It being admitted that the defendant company operated safety gates on two sides of the railroad, it would not be negligent in running its express trains at a speed of forty miles an hour at that point.” This point was refused for the reason that the uncontradicted evidence of a large number of witnesses showed that the gates were not properly operated at the time of the accident; that they were raised and the horse and wagon permitted to be driven into the crossing when the train was approaching at the rate of forty miles per hour, and so near that the wagon was Struck and demolished and the boy killed, although the horse was moving all of the time and apparently the driver made a reasonable effort to escape with his heavy load, but failed.
Under the evidence the jury could find that the gates were negligently operated; and this being so, if the train approached at the speed alleged without some warning, it is difficult to understand how the learned court could have affirmed the point. Raising the gate and allowing persons to enter the crossing, in the circumstances indicated by the evidence, was certainly evidence for the consideration of the jury as to the negligence of the defendant: Philadelphia & Reading R. R. Co. v. Killips, 88 Pa. 405 ; Lake Shore, etc., Ry. Co. v. Frantz, 127 Pa. 297 ; Ayers v. Ry. Co., 201 Pa. 124. We cannot sustain the first assignment.
[29]*29The case of Custer v. R. R. Co., 206 Pa. 529, is not in conflict with the foregoing cases. In that case the watchman did his full duty and the accident was caused by an exceptional occurrence, viz : the stalling of the team upon the edge of the track and its remaining there for some considerable time. That case is authority for the proposition that when the company has provided safety gates and operates them properly, trains may pass on grade crossings at a high rate of speed.
The second assignment is: “ The decedent not having stopped, looked and listened, nor having requested the driver to do so, for the approaching train, before and while on the crossing, the plaintiff cannot recover and the verdict should be for the defendant.” This point was refused.
There was evidence that the wagon on which the boy was riding was standing at the gate waiting for a team to pass when he got on the wagon. It seems then that the jury could find that the wagon stopped at .the gate, and the presumption of law is that, having stopped, both the driver and the decedent would look and listen before entering upon the crossing. The additional question of whether or not the driver and the boy should have stopped, looked and listened at another point was for the jury: Cromley v. Pennsylvania R. R. Co., 208 Pa. 445; Ely v. Pittsburg, etc., Ry. Co., 158 Pa. 233.
But in addition to this, the boy was only twelve years old and the court could not say, as a matter of law, that he had sufficient mental development and capacity to comprehend the danger so that he would be guilty of contributory negligence, although an adult might have been in the same circnmstances. However, this question is raised by the third assignment and it will be disposed of thereunder. The second assignment is not sustained.
Third assignment: The decedent being under fourteen years of age could not be held, as a matter of law, guilty of such contributory negligence as would prevent his parents from recovering, and the question of his capacity and understanding to be sensible of danger, and to have the power to avoid it, was one of fact to be disposed of by the jury under proper instructions from the court: Nagle v. Allegheny Valley R. R. Co., 88 Pa. 35; Kelly v. Traction Co., 204 Pa. 623 ; Crissey v. Hestonville, etc., Passenger Ry. Co., 75 Pa. 83.
[30]*30The question of whether the boy was guilty of contributory negligence was properly submitted, to the jury. The third assignment is not sustained.
The fourth, fifth and ninth assignments raise the question of the failure to join Alice Bracken, the mother of the boy, with the father as plaintiff. We do not see much force in these assignments and the arguments submitted, to sustain them. If the case was otherwise properly tried, it is unreasonable to suppose that the recovery was any larger because the father was the sole plaintiff at the trial than it would have been had the mother been joined as plaintiff. After the trial and verdict the record was amended by bringing the mother of the boy thereon as a plaintiff. Let it be conceded that the suit ought to have been brought in favor of the father and mother, under the Act of April 26, 1855, P. L. 309, yet we think the mistake could be cured by amendment.
In Weaver v. Iselin, 161 Pa. 386, the action was brought by a father to recover damages for the death of his infant son, and a verdict and judgment recovered in the court below, and the very question of the right of the father to recover alone was raised by a point before verdict, and when the case was in the Supreme Court an amendment was allowed to bring the wife of the plaintiff upon the record. We think that case disposes of the fourth, fifth and ninth assignments, and they are not sustained.
The sixth assignment raises the question of the measure of damages, and the only point the appellant presses is that the plaintiff was compelled to send the decedent to school under the Act of assembly of July 11, 1901, P. L. 658, until he would be sixteen years old. Under the evidence the court held that the boy came within the provisions of the proviso to the act: “ This act shall not apply to any child between the ages of thirteen and sixteen years who can read and write the English language intelligently, and is regularly engaged in any useful employment or service.”
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Opinion by
Mobbison, J.,
On November 29, 1902, about 9:40 A. M., Robert Bracken, aged twelve years and seven months, was instantly killed at the Fairfield-avenue grade crossing, in the suburbs of the city of Johnstown, by one of the defendant’s trains. The boy was playing near the defendant’s tracks, when Andrew Dennison, driving a one-horse wagon, attempted to cross the four main tracks of defendant company, and one of the Cambria Steel Company. The boy jumped on the rear end of the wagon, although told by Dennison to keep off, for the reason that he had a heavy load of sand which was rather too much for his horse. Two companions got on the wagon with the boy, but they saw the train approaching and escaped, and it appears that they did all ■ that they could to warn Bracken; but he remained on the load of sand, with his back to the locomotive, and was beckon[28]*28ing to his companions to follow him. The express train which-killed the boy was going east on track No. 2, and it demolished the wagon. Mr. Dennison and the horse escaped. There were what are termed safety gates at this crossing, but the gateman either negligently, or because no proper warning was given of the approach of the train, raised the gates and permitted a team just in front of Dennison to enter the crossing, and Dennison followed.
Hudson C. Bracken, the father of the boy, brought this action, and recovered a verdict and judgment, without his wife, the mother of the boy, being made a party to the suit, until after the recovery, when her name was brought upon the record by amendment. The verdict in favor of the plaintiff is $1,250.15.
The two prominent questions in the case are, of course, whether the defendant company was guilty of negligence and the alleged contributory negligence of the boy.
The first assignment of error is: “ It being admitted that the defendant company operated safety gates on two sides of the railroad, it would not be negligent in running its express trains at a speed of forty miles an hour at that point.” This point was refused for the reason that the uncontradicted evidence of a large number of witnesses showed that the gates were not properly operated at the time of the accident; that they were raised and the horse and wagon permitted to be driven into the crossing when the train was approaching at the rate of forty miles per hour, and so near that the wagon was Struck and demolished and the boy killed, although the horse was moving all of the time and apparently the driver made a reasonable effort to escape with his heavy load, but failed.
Under the evidence the jury could find that the gates were negligently operated; and this being so, if the train approached at the speed alleged without some warning, it is difficult to understand how the learned court could have affirmed the point. Raising the gate and allowing persons to enter the crossing, in the circumstances indicated by the evidence, was certainly evidence for the consideration of the jury as to the negligence of the defendant: Philadelphia & Reading R. R. Co. v. Killips, 88 Pa. 405 ; Lake Shore, etc., Ry. Co. v. Frantz, 127 Pa. 297 ; Ayers v. Ry. Co., 201 Pa. 124. We cannot sustain the first assignment.
[29]*29The case of Custer v. R. R. Co., 206 Pa. 529, is not in conflict with the foregoing cases. In that case the watchman did his full duty and the accident was caused by an exceptional occurrence, viz : the stalling of the team upon the edge of the track and its remaining there for some considerable time. That case is authority for the proposition that when the company has provided safety gates and operates them properly, trains may pass on grade crossings at a high rate of speed.
The second assignment is: “ The decedent not having stopped, looked and listened, nor having requested the driver to do so, for the approaching train, before and while on the crossing, the plaintiff cannot recover and the verdict should be for the defendant.” This point was refused.
There was evidence that the wagon on which the boy was riding was standing at the gate waiting for a team to pass when he got on the wagon. It seems then that the jury could find that the wagon stopped at .the gate, and the presumption of law is that, having stopped, both the driver and the decedent would look and listen before entering upon the crossing. The additional question of whether or not the driver and the boy should have stopped, looked and listened at another point was for the jury: Cromley v. Pennsylvania R. R. Co., 208 Pa. 445; Ely v. Pittsburg, etc., Ry. Co., 158 Pa. 233.
But in addition to this, the boy was only twelve years old and the court could not say, as a matter of law, that he had sufficient mental development and capacity to comprehend the danger so that he would be guilty of contributory negligence, although an adult might have been in the same circnmstances. However, this question is raised by the third assignment and it will be disposed of thereunder. The second assignment is not sustained.
Third assignment: The decedent being under fourteen years of age could not be held, as a matter of law, guilty of such contributory negligence as would prevent his parents from recovering, and the question of his capacity and understanding to be sensible of danger, and to have the power to avoid it, was one of fact to be disposed of by the jury under proper instructions from the court: Nagle v. Allegheny Valley R. R. Co., 88 Pa. 35; Kelly v. Traction Co., 204 Pa. 623 ; Crissey v. Hestonville, etc., Passenger Ry. Co., 75 Pa. 83.
[30]*30The question of whether the boy was guilty of contributory negligence was properly submitted, to the jury. The third assignment is not sustained.
The fourth, fifth and ninth assignments raise the question of the failure to join Alice Bracken, the mother of the boy, with the father as plaintiff. We do not see much force in these assignments and the arguments submitted, to sustain them. If the case was otherwise properly tried, it is unreasonable to suppose that the recovery was any larger because the father was the sole plaintiff at the trial than it would have been had the mother been joined as plaintiff. After the trial and verdict the record was amended by bringing the mother of the boy thereon as a plaintiff. Let it be conceded that the suit ought to have been brought in favor of the father and mother, under the Act of April 26, 1855, P. L. 309, yet we think the mistake could be cured by amendment.
In Weaver v. Iselin, 161 Pa. 386, the action was brought by a father to recover damages for the death of his infant son, and a verdict and judgment recovered in the court below, and the very question of the right of the father to recover alone was raised by a point before verdict, and when the case was in the Supreme Court an amendment was allowed to bring the wife of the plaintiff upon the record. We think that case disposes of the fourth, fifth and ninth assignments, and they are not sustained.
The sixth assignment raises the question of the measure of damages, and the only point the appellant presses is that the plaintiff was compelled to send the decedent to school under the Act of assembly of July 11, 1901, P. L. 658, until he would be sixteen years old. Under the evidence the court held that the boy came within the provisions of the proviso to the act: “ This act shall not apply to any child between the ages of thirteen and sixteen years who can read and write the English language intelligently, and is regularly engaged in any useful employment or service.”
Under the evidence we are not prepared to say that the court could assume, or allow the jury to find, that the parents would have been excused from sending this boy to school from the age of thirteen to sixteen years. We cannot see how it could be assumed that if the boy had lived he would have been regu[31]*31larly employed within the meaning of the proviso to the act, during the time in question. The jury ought to have been instructed to assume that the parents would have been compelled to send him to school till he was sixteen years old. The sixth assignment is sustained.
The seventh and eighth assignments relate to the refusal of the court to strike out all the testimony to the effect that the whistle of the locomotive was not sounded for the crossing when the accident occurred, and if the whistle was not sounded for that crossing it could not be negligence on the part of the defendant because of an ordinance of the city prohibiting the sounding of the whistle as a warning at a crossing. We may dispose of these assignments by saying that it is idle to argue that a railroad company can run its trains over a grade crossing in a city at the rate of forty miles an hour and give no proper signal, and at the same time fail to properly operate its gates, and to so operate them that travelers may be deceived and led into danger: Philadelphia & Reading R. R. Co. v. Killips, 88 Pa. 405; Farley v. Harris, 186 Pa. 440; Webb v. Railway Co., 202 Pa. 511; P. W. & B. R. R. Co. v. Stinger, 78 Pa. 219. Under the peculiar facts in evidence we do not sustain the seventh and eighth assignments. ’ .
The tenth assignment: “ The court erred in admitting in evidence, against the objection of defendant, ordinance No. 136, limiting the speed of trains to five miles per hour within the limits of the city of Johnstown,” quoting the ordinance. ■.
In Lederman et ux. v. Penna. Railroad Co., 165 Pa. 118, it is held, as stated in the syllabus: “ Evidence that a city ordinance forbade trains to be run at a higher rate of speed than five miles an hour may be considered in ascertaining whether or not the train was being negligently run, but such an ordinance is not in itself evidence of negligence.” See also Davidson v. Traction Co., 4 Pa. Superior Ct. 86 ; Foote v. American Product Co., 195 Pa. 190 ; Simmons v. Penna. R. R. Co., 199 Pa. 232. We do not sustain the tenth assignment.
The eleventh assignment complains of the court for admitting the testimony of Fred Williams that there were no safety gates at the Bone Mill Crossing. This evidence was objected to as immaterial and irrelevant, and as having no connection with the Fairfield-avenue crossing, where there were safety gates [32]*32and where the accident occurred. The court overruled the objection and admitted the evidence. We are not informed how far the Bone Mill crossing was from the place of the accident, but it is conceded to have been another crossing, having no connection with the Fairfield-avenue crossing, and it is not shown to have been within such a distance of the latter crossing that the want of gates there in any manner contributed to the accident. Upon the facts as we understand them this evidence was improper. It is difficult to see that it could have had any legitimate bearing upon the case, and we cannot say that it did not tend to prejudice the jury against the defendant company and lead to the conclusion that the trains were being run in a reckless and careless manner upon a portion of the track remote from the place of accident. That the defendant company saw fit to operate its road without safety gates, at crossings other than the one where the accident occurred, does not tend at all to establish negligence at the place of the accident. If this testimony was proper, why not go on and prove the want of safety gates at a dozen or more other crossings ? We feel compelled to sustain the eleventh assignment.
The twelfth assignment is: “ It has been argued by counsel that these are not safety gates, but rather death traps; why they should be there we are not just clear, because if they are a positive injury they ought to be taken down.” If it were not for the fact that the judgment must be reversed and the case go back for another trial, we might hesitate to sustain this assignment. But we are of the opinion that the court was not warranted in using the language in the connection where it appears in the charge. At best, it served no useful purpose in instructing the jury, and it may have conveyed the idea to the jury that the ’court considered the safety gates to be death traps. Such language in a charge, in a case of this character, does not tend to lead the jury to a fair and impartial consideration and determination of the questions involved. The twelfth assignment is sustained.
As to the thirteenth assignment, we would probably consider it of too little importance to justify a reversal of the judgment, but inasmuch as the case is to be retried we are disposed to sustain it. The testimony is clear that the boy was told not to get on the wagon and that the driver wanted him to keep off. [33]*33The counsel for the defendant had a clear right to call this to the attention of the jury in his argument, but the learned court, by the language quoted in the assignment, probably destroyed, with the jury, the whole effect of the argument upon that point. The thirteenth assignment is sustained.
We are not convinced of reversible error in the fourteenth, fifteenth and sixteenth assignments. When they are considered in connection with the general charge, we are not satisfied that the defendant suffered any serious injury from the language contained therein, and these assignments are not sustained.
The seventeenth assignment is: “ If the jury find that the driver of the wagon upon which Robert Bracken was riding was negligent, the negligence of the driver cannot be imputed to the boy as a guest on the wagon.” The court affirmed this point and in this we think there is error. If the boy had the capacity and intelligence to appreciate the danger of the crossing, and knew what care and caution he should exercise, and he was careless and reckless and intrusted his safety to the driver of the wagon, and he was negligent, then his negligence might have been imputed to the boy by the jury, and in such case it might bar the plaintiff’s recovery: Crescent Township v. Anderson, 114 Pa. 643; Decker v. East Washington Borough, 21 Pa. Superior Ct. 211. In addition, it is a palpable mistake in the court to say in effect to the jury that the boy was a guest on the wagon. All of the evidence on this question is to the effect that the boy was warned to keep off the wagon by the driver, and, therefore, it is not correct to designate him as a guest. The seventeenth assignment is sustained.
Inasmuch as this case may be tried again we desire to state as plainly as we can that the question of the contributory negligence of the deceased boy is a very important factor in this case. If, on another trial, the jury should find that the boy was bright and intelligent and of sufficient mental capacity and knowledge to comprehend the danger at this crossing and to know that he ought to stop, look and listen, and use all reasonable care and prudence to protect himself, and that he failed to do this, then his parents cannot recover because of the negligence of the defendant company in failing, if it did fail, to give a proper signal before reaching the crossing and in failing to [34]*34properly operate the safety gates. Our Supreme Court has held in a long line of cases that the negligence of the defendant in the manner above alluded to will not release the traveler from exercising all due care and caution while crossing the tracks of the defendant company. It is, therefore, apparent that the capacity of the deceased boy to be guilty of such contributory negligence as would have prevented his recovery if he had been injured and lived, may also be a complete bar to a recovery on the part of his parents. Therefore this question should be fairly, clearly and impartially submitted to the jury : Greenwood v. Railroad Co., 124 Pa. 572; Dean v. Penna. R. R. Co., 129 Pa. 514; Ihrig v. Erie Railroad Co., 210 Pa. 98.
The assignments of error are all dismissed except the sixth, eleventh, twelfth, thirteenth and seventeenth, which are sustained, and the judgment is reversed with a v. f. d. n.