Mulligan v. Homestead Borough

90 A. 71, 243 Pa. 361, 1914 Pa. LEXIS 629

• Court: Supreme Court of Pennsylvania
• Decided: January 5, 1914
• Docket: Appeal, No. 240
• Status: Published

Opinion

Pee Curiam,

The negligence of the defendant in permitting, for many months, the loose ends of a barbed wire fence to extend over a narrow sidewalk of a borough street was not denied at the trial. The main ground of defense was that the plaintiffs were negligent in walking on the sidewalk in the dusk of the evening, with knowledge of the condition of the fence, when a safe and convenient way on another street was open to them. The learned trial judge found that this defense was sustained as to Thomas Mulligan, the father, who had used the street daily, and entered judgment against him non obstante veredicto. His daughter, the other plaintiff, who suffered the entire destruction of an eye by coming into contact with the wire was eleven years and six months of age. The instruction as to her was that she should be held to only the degree of care that was ordinarily to be expected of a child of her age. This instruction was clearly right. The measure of a child’s responsibility in his capacity to see and appreciate danger and while the measure varies with each additional year, the standard is the average capacity of others of his age and intelligence: Kehler v. Schwenk, 144 Pa. 348. We find no merit in the assignments of error.

The judgment is affirmed.