Hestonville Passenger Railroad v. Grey

1 Walk. 513

Opinion

The Supreme Court affirmed the ruling of the Court below, on February 12th, 1876, in the following opinion :

Per Curiam.

It would have been error in the Court below to have affirmed the third and fourth points of the plaintiffs, of which they complain in their first and second assignments of error. They would have taken from the jury the material question of fact what degree of care and discretion was ordinarily to be expected of a child of the age of the plaintiff below. We see nothing in the evidence like an admission which precluded the jury from the consideration of this question. The fifth point which forms the subject of the third error assigned, plainly involved a contradiction in its terms which could not have been rightly affirmed. It asked the -judge to instruct the jury that a rash, improper, careless and- negligent act ol the servant of the defendants below, was such a wilful and malicious act on his part that they were not liable for the injury resulting from it to the plaintiff. None of the specifications of error therefore can be sustained.

Judgment affirmed.