Davis v. Westmoreland County Railway Co.

71 A. 538, 222 Pa. 356, 1908 Pa. LEXIS 710

• Court: Supreme Court of Pennsylvania
• Decided: November 2, 1908
• Docket: Appeals, Nos. 178 and 179
• Status: Published

Opinion

Per Curiam,

When the larger child ran out of the house and along the tracks the motorman’s attention was naturally and properly directed to her. Though she was not on the tracks she was running parallel to them and so close that a step or two might bring her upon them at any instant. But the danger to her was not so imminent as to justify him, as a matter of law, in closing his eyes to other obstructions or risks in his path. He was bound to keep a general lookout in the performance of his duties.

It is negligence in a traveler along the streets of a city not to keep a general lookout where he is going. This was the rule held in regard to a foot passenger in Robb v. Connellsville Boro., 137 Pa. 42; Harris v. Commerical Ice Co., 153 Pa. 278; and the same rule was applied to the driver of a vehicle in Graham v. Philadelphia, 19 Pa. Superior Ct. 292.

This being the law in regard to negligence in an ordinary-traveler, a fortiori applies to the motorman in charge of a car. Whether in this case he did so, as far as the circumstances permitted, or whether notwithstanding the primary call upon his attention he should have seen the smaller child in time to avoid it, was a question of fact which only a jury could answer.

On the second question, the negligence of the parents in allowing so young a child to be upon the street, under the circumstances is equally clearly a question for the jury: Woeckner v. Erie Electric Motor Co., 182 Pa. 182; Jones v. United Traction Co., 201 Pa. 346.

Judgment affirmed.