
    PENNSYLVANIA RAILROAD CO. VS. BROOKS.
    A girl, going to school, attempted to cross a railroad immediately after a freight train had passed; but was struck by an express train, coming in an opposite direction, the question whether she was negligent was properly left to the jury.
    The question whether, running a train at a high rate of speed in a city, is negligence in the Railroad Company, is for the jury.
    It is not necessarily negligence for parents to allow their se-ven-year-old daughter to cross a railroad track alone, in going to school.
    Error to the Common Picas, No. 3 of Phila. County, No. 47, Jan. Term, 1884.
    This was an action brought by Bernard E. Brooks and Susanna Brooks, his wife, to recover damages for. the death of their daughter, Elizabeth R. Brooks, who was run over by an express, train of the Company, defendant, at the point where Bridge street near Bridesburg crosses the railroad. The accident occurred on March 29,1882, at 9 o’clock in the «morning. The-child was about seven years of age, and was standing with two or three other children, on the north side of the railroad train, at Bridge street, waiting for the passage of the freight train, going in the direction of Philadelphia. As the last car of the freight train had passed, two of the children started to cross the track, and Elizabeth was struck by the express train, going towards N. Y. The judge charged the jury as follows :
    Gentlemen oe the Jury : This is an action brought by the plaintiff to recover damages for death of his daughter by the negligence of the servants of the defendant. I need scarcely say to you that this company, indeed every company of this character. is responsible for tbe negligence of those employed by them. To recover in a case of this kind a plaintiff must establish, first, that the employees of the defendant company were negligent. But that is not enough. In addition to that the plaintiff must also show by his testimony that the child that was killed was not negligent. Both of these facts must be established before you can render a verdict for the plaintiff. If the. plaintiff has failed in either of them it is your duty at once to render a verdict for the defendant. The first matter that it is right to call your attention to in a case of this kind is in some degree to explain to you what the law considers negligence. Anri briefly, negligence may be said to consist in doing that which ought not to be done, or not doing that which ought to be done. In other words, negligence is a disregard of duties either in the commission or omission of doing any particular act. And this definition, gentlemen, applies as well to the plaintiffs’ child as it. does to the employees of the defendant. To properly understand any act that you are called upon to consider, it is most essential that you consider that act in the light of all the surroundings of fact, and to consider the time, the place, the person, and all the incidents of the act which caused the injury complained of.
    You can very readily understand that what might be the duty of a railroad in places not frequented nor populous, would be entirely different from that required of them in populous places. I need scarcely say to you that a railroad running in a populous place, a place like the city of Philadelphia, is called upon to exercise extrenfe precaution. If they were passing through a wilderness unfrequented very much less care is necessary. Of course these are the two extremes, a populous city and a wilderness. You are to judge all the circumstances, time and place, and all the incidents connected with the case, and say whether either of the parties has been negligent or not. •
    Now the first question, perhaps, for consideration would be, what was the nature of this particular crossing ? The testimony shows that the immediate neighborhood of this crossing was more or less filled with houses. Certainly it was to some extent a place that had many houses in the immediate vicinity.
    The testimony also indicates to you that this particular crossing was passed frequently, not only by men, women, and children, but passed frequently by horses and vehicles of different kinds. The defendants in this case, the plaintiff, and every one else have frequented the place — a place at which people were passing perhaps at all hours of the day.
    It is also necessary that you should consider the number of trains that pass at this particular crossing; and if you don’t know precisely the number, you can perhaps guess a fair amount in this case. The flagman, whose duty it was to warn these trains, says that there was a train every ten minutes, if they ran regularly. That answer would indicate that there were times in which the time was less than ten minutes in which there were trains. And the evidence shows that there was perhaps not two •seconds between the passing of one train and the coming of the other. Again, the time at which this occurred was, I think, about nine o’clock, about the time when children are going to school.
    The evidence shows that this little girl was at that particular time on her way to school, accompanied by three or four other ■children. It is also a matter when you should consider and fix in. your minds as to the rate of speed at which this train was running at the time. The engineer says it was running at the rate of thirty miles an hour. Another witness for the defendant says it was running from forty to forty-live miles an liour. The witness for the plaintiff, Mr. Wood, who had an opportunity of seeing at what rate of speed it went, says it was going at a rate of fifty-five to sixty miles .an hour. *
    
    . It is also in evidence that this train was behind time, and that it is a fact which you may consider, when you consider the distance and time in which the engineer had to make the journey. That will give some idea of the rate of speed this train was going. Just at this time, just before the New York train reached this crossing, the freight train was passing. Now, it is another matter of fact that the engineer of' the train which killed the child saw this freight train for a mile and a quarter before he reached the crossing, and, as I understand his testimony, he saw it all the time, until he himself reached the crossing. The child was killed by the New York train. There was stationed near the crossing a flagman, a person whose duty it was to give notice to all trains of any approaching danger, and give notice also to the public. The intelligence or rather the fitness of that man for his duties has been commented upon by both sides. You saw him on the stand, you had an opportunity of observing his intelligence and of his capacity for a position such as this where trains were passing very frequently, and it is for you to say whether he was a competent and fit person for the duty in which he was then placed; of course, if the testimony should tell you he was not fit, then his unfitness for the duty will show negligence to a certain extent in employing him. It would not, however, show that he was negligent at that time. Now, something has been said about the necessities which require fast travel. It is almost a universal feeling to go as fast as you can. The great desire to save two or three minutes on the part of the community in a journey extending over four or five hours’ ride, has compelled the company to use the highest rate of speed. But, gentlemen, in the exercise of that right it is their duty to see that the public right of safety is not violated.
    In other words, they have a right of course to go as fast as they please, but it must be at a rate of speed, consistent with the safety of passengers and of the public who are compelled to cross their roads. And the rate of speed is always a question for the jury to say, and it is for you to say whether they ran the train faster than they ought to have done. And in the exercise of their right to run trains up and down (as in this case they ran a-train up and another down), it is necessary that they should give, at a crossing which the public had to use either as foot passengers or travelers in vehicles, notice in some way, so that the citizen or person who is there will not be in danger in the exercise of his right to cross. Now what notice did the employees of this road give to the public ? I have said there was a flagman there, and I ought also to say that he gave all the notice he could have given. In other words, whether he be fit for the office or not, if you believe the testimony of the flagman that was there, I say that he gave all the notice that he possibly could under the circumstances ; and if you believe that the notice of the flagman was given, it is still for you to say, under all the circumstances of this case, whether that notice was sufficient or not. You will recollect that when the New York train was passing it was only eight or ten feet from the freight train when he raised his flag. You -would think he would scarcely have time to raise it. It must be to his credit that he began to raise the flag before the train passed. During that moment of time he was raising the flag, and, as I have already said, it was all the notice that he possibly could have given under the circumstances, and it is for you to say whether that notice was sufficient; of course, if it was not sufficient notice, it was negligence. Why was it that he only had this brief moment of time ? It is not for him to say, but it certainly was the result of the running of these trains.
    Who is responsible for that ? Why, undoubtedly the company that ran the train, and they cannot say that in that moment of time the flagman had given the ordinary notice.
    Now what warning did the engineer of the New York train give ? You will recollect that he saw the freight train passing the crossing, and he saw it a mile and a quarter before he reached the crossing, and he said that he did not slack up — -that he kept on at the same rate of speed when he was crossing this highway, and saw the freight train when he was a mile and a quarter away. He says he blew the whistle twenty-five or thirty yards from the crossing — that is to say, he blew the whistle two seeonds of time before he crossed, if he was running, as he says, thirty miles an hour. If, however, he was running at the rate of foi’ty-five miles an hour, as one of the witnesses for the defendant says, then it was but a second and a half. But if it was at the rate of speed, as one of the witnesses has said, it was but a single second, and that was notice to the public passing at that-crossing. Now it is for you to say whether or not the employees, the flagman and engineer, were negligent .or not in the performance of the duties they were required to fulfill by the defendant. If it is possible that a second of time is enough, and you think so, then you will say the railroad company was not -negligent. But if it was not time enough, then the railroad was negligent in their employees giving such brief notice of time. Now, I may say, in general terms, that notice is of no effect unless it is sufficient to give warning, and also sufficient to give any one the opportunity to profit by that warning. Was there any time here in this case to give a sufficient warning ? and if there was, was there sufficient time for any one who was there to take advantage of the warning, and avoid the coming danger? If you come to the conclusion that the employees of the defendant are negligent, then you would consider whether the plaintiffs’ child was negligent. Bor the purpose of this case I saj>' to you that this child is to be held to the same degree of watchfulness and care that a man of grown-up wisdom is. You will recollect that all the persons that were there — that is, the two ,or three or four grown-up persons and the children — were waiting until the freight train passed. Wa,s there any notice or means of notice given to them whilst they were standing there before they went across ? But I do not recollect that there was any evidence of the warning or any iqeans of warning, or any indications from which they ought to have expected that a train either was coming in the direction of the freight train, or that there was any train coming in an opposite direction.
    "What is the natural impulse of persons who are waiting for a train to pass ? Is it or is it not for persons at once to cross ?
    The evidence of two other witnesses for the defendant grown men, one of them a man probably fifty years of age. The eviidenee of these two grown men shows that they attempted to cross just as the freight train had passed. They, however, saw the approaching train, or saw the flagman waving the flag just in time to save their lives. Now you will recollect the testimony in this case, that the little girl was eight feet away from the men, and the other witness says three. At all events she was from three to eight feet below, and she was at that point when she meant to cross. Well, now when you consider that there was but eight or ten feet between these trains, and that she started at a point from three to eight feet below them, it is for you to say whether she had an opportunity to see the flag or approaching train. It is for you to say from the testimony whether she exercised care or not. Of course, if you are compelled to say from the testimony that she saw as they did- — she had the same opportunity as they had — that she was reckless — then your verdict should be for the defendant. If, however, she could not see under the circumstances, and her conduct was as it ought to have been, then your verdict shall be for the plaintiffs. Now, I need scarcely say to you that it is the duty of every person who attempts to cross a railroad track anywhere, to stop, look, and listen. This rule, however, must in some degree, depend upon the circumstances of each particular case. If the acts of the employees of the defendant prevented this child from doing this as fully as she could, or put her in such a condition of mind as to prevent her from exercising her senses fully, then she must not be held responsible. Now, under all the circumstances, did this child do what a reasonable, prudent person would have done in a like position ? In considering this part of the case, you must remember that two grown-up men attempted to do what she attempted to do. In other words, two men, almost in the same instant of time, attempted to cross, and she also attempted to cross at that particular time. They saw the flagman; did she ? Did she act prudently, in doing what two grown men attempted to do ?
    Now if you find that the. defendant’s employees were negligent, and that the child was not negligent, under the instructions as to what was required of her, then the question of damages arises, and that you must gravely and, carefully consider. Now the parents are entitled to the services of a child until it arrives at the age of twenty-one ; and you are to say, gentlemen, from the evidence of this case, what the value of the services of that child would have been, had she lived until she had been twenty-one. Of course, you will make your calculations just in whatever manner is most satisfactory to you. There is also an element of damages in this case, the probability that after she had arrived at the age of twenty-one years, she would render some valuable services to her parents.
    This, however, is so uncertain a fact, depending upon so many contingencies, that it is little more than a guess to value her services after she had reached twenty-one. You must remember that there would be four or five years before twenty-one before she would earn anything. Perhaps your experiences in. life are that children are not of much service after they arrive at the age of twenty-one. Now, you will understand it is your duty to give compensation for services which the child might have rendered if the accident had not occurred, and nothing more. Whilst you will give sympathy, as everybody should, to parents, you will violate your duty if you measure the damages by your sympathy.
    As I say to you, the Court will sanction no verdict which is based upon your sympathy.
    Your duty to yourselves requires you to give a just and proper verdict, and I think you are' intelligent, and desire to do your duty.
    It is also in evidence that the coming train rang its bell; there is also evidence as to the noise of the trains. Whether the bell was heard or not is a question for the jury.
    The defendant-had offered several points, to the effect that the plaintiffs were negligent in allowing their daughter to go at' large upon the street, without any one to protect her. That, if she was of sufficient intelligence and discretion to be sent to school alone, she had sufficient capacity and understanding to be sensible of her danger, and to have the power to avoid it, and hence was guilty of contributory negligence. These points were refused. April 11,1883; .Verdict for plaintiff for $1,000.
    
      The railroad company then took a writ of error, complaining of the refusal of the Court to charge as requested. ■
    
      Wayne MacVeagh and Bispham for plaintiff in error
    argued, that the child was guilty of negligence; Penna. R. R. Co. vs. Werner, 89 Penna. 59; Phil. and Reading R. R. Co. vs. Carr 11 W. N. C. 549.
    
      George H. Van Zant, Esq. for defendants in error
    argued, that the judge left the question of negligence to the jury, under proper instructions. The speed of the railroad company’s trains should have been checked in populous neighborhoods, on grade crossings ; Phila. & R. R. R. Co. vs. Long, 75 Penna. 257; Reeves vs. Delaware, Lackawanna & Western R. R. Co, 30 Penna. 454; Penna. R. R. Co. vs. Lewis, 79 Penna. 33. The law presumes, that the child actually did all that it was required to do under the law ; Penna. R. R.. Co. vs. White, 6 W. N. C., 516; Penna. R. R. Co. vs. Werner, 6 W. N. C. 522; Penna. R. R. Co. vs. Weber, 76 Penna, 157; Pittsburg R. R. Co. vs. Pearson, 72 Penna. 172.
   The Supreme Court affirmed the decision of the Court below, on Feb. 11th, 1884, in the following opinion:

Per Curiam.

No one of the specifications of error is sustained. Under all the evidence the question of negligence was for the jury to determine. The Court was therefore right in refusing to affirm any of the points submitted by the plaintiff in error.

Judgment affirmed.  