McMellen v. Union News Co.

22 A. 706, 144 Pa. 332, 1891 Pa. LEXIS 616

• Court: Pennsylvania Court of Common Pleas, Lancaster County
• Decided: October 5, 1891
• Docket: No. 28
• Status: Published

Opinion

Per Curiam:

We think the plaintiffs were properly nonsuited. Conceding that their son was employed by the defendants without their knowledge, that fact would not make them responsible in damages for the accident of his death. The plaintiff can recover only by showing that the boy’s death was caused by the negligence of the defendant. There was no evidence to sustain their contention upon that point.

The defendant company employed the plaintiffs’ son, an intelligent lad of fifteen years of age, to sell newspapers, magazines, and other printed matter, upon the cars of the Pennsylvania Railroad Company at the city of Lancaster. This is an employment peculiarly fitted for boys, in which men are seldom engaged, and we are not aware that it has been usually regarded as a dangerous service. There is, of course, the same peril which passengers are subjected to, but little more. In this case there was even less hazard, as he was expressly directed by his employer to sell his wares from his basket only while the trains were standing in the station at Lancaster; that is to say, he was to board the trains as soon as they stopped, pass through with his basket, and leave the train before it started. He was further instructed that, if the train started before he got off, he was to go to the next stopping place. Had he obeyed these instructions, there was hardly a possibility of his being injured. It appears that on the day of the accident he attempted to get off the train after it had started and gone some distance. The evidence upon this point is not very clear, but there is no doubt that he was upon the train when it started, and that his body was found along the track some distance from the place of starting. Whether he fell off the train or jumped off was a disputed question, and not very material. He disobeyed his plain instructions, and his death was the unfortunate result. He was a well-grown, intelligent boy, in his sixteenth year; had worked for his father for some time at his trade of a carpenter, and, as the latter testified, was “worth nearly a full hand.” We fail to see, under the circumstances, anything to show that the death of the lad was in any degree chargeable to the negligence of the defendant company.

Judgment affirmed.