
    Samuel Funk, by his Father and Next Friend, Harry Funk, Appellant, v. The Electric Traction Company of Philadelphia.
    [Marked to be reported.]
    
      Negligence — Street railways — Infant.
    In an action by a boy thirteen years of age against an electric railway company to recover damages for personal injuries, a nonsuit is properly entered where the evidence for the plaintiff shows that an electric car was running rapidly; that the boy ran diagonally across the street, not at a crossing, but at a place where he could have seen the car if he had looked, and that he continued running until he suddenly ran against the car, or came so close to it that it necessarily ran against him.
    Argued March 31, 1896.
    Appeal, No. 109, Jan. T., 1896, by plaintiff, from order of C. P. No. 3, Phila. Co., June T., 1894, No. 1085, refusing to take off nonsuit.
    Before Green, McCollum, Mitchell, Dean and Fell, JJ.
    Affirmed.
    Trespass for personal injuries.
    The facts appear by the opinion of the Supreme Court.
    
      Error assigned was refusal to take off nonsuit.
    
      May 25, 1896:
    
      Thomas Diehl, John G. Johnson with him, for appellant.—
    The evidence shows that the car was rnn with the utmost carelessness and negligence: Phila. Traction Co. v. Bernheimer, 125 Pa. 615; Steiner v. Traction Co., 134 Pa. 201; Dunseath v. Traction Co., 161 Pa. 124; laquinta v. Traction Co., 166 Pa. 63.
    The conduct of the appellant was not, in view of his age and the circumstances of the case, such as to preclude a recovery : Chilton v. Traction Co., 152 Pa. 426 ; Flanagan v. Pass. Ry., 163 Pa. 105; Schnur v. Traction Co., 153 Pa. 29; Penna. R. R. Co. v. Kelly, 31 Pa. 372; Kay v. Penna. R. R. Co., 65 Pa. 273; Crissey v. Passenger Ry. Co., 75 Pa. 83; Ry. Co. v. Gray, 3 W. N. C. 421; Ry. Co. v. Steinhart, 2 Penny. 358; Taylor v. Canal Co., 113 Pa. 162; City v. Downs, 126 Pa. 622 ; Strawbridge v. Bradford, 128 Pa. 200; Wilson v. R. R. Co., 132 Pa. 27.
    
      J. Howard Gendell, for appellee. —
    The defendant was not guilty of negligence: Phila. & Read. R. R. v. Spearen, 47 Pa. 300 ; IIestonville etc. Pass. Ry. v. Kelley, 102 Pa. 115; Brown v. French, 104 Pa. 604; Sekcrak v. Jutte, 153 Pa. 117.
    The negligence of the plaintiff caused, or at least contributed to, the accident: Buzby v. Phila. Traction Co., 126 Pa. 559; Thomas v. Citizens’ Pass. Ry. Co., 132 Pa,. 504: Warner v. People’s Street Ry. Co., 141 Pa. 615 ; Carson v. Federal St. etc. Ry. Co., 147 Pa. 219; Ehrisman v. East Harrisburg, etc., Ry. Co., 150 Pa. 180 ; Wheelahan v. Phila. Traction Co., 150 Pa. 187 ; Omslaer v. Traction Co., 168 Pa. 519 ; Honor v. Albrighton, 93 Pa. 475; Miller v. Penna. R. R., 8 Atl. Rep. 209; Moore v. Penna. R. R., 99 Pa. 301; Lehigh Coal etc. Co. v. Hayes, 128 Pa. 294; Wendell v. R. R., 91 N. Y. 420; Tucker v. R. R., 124 N. Y. 308; Reynolds v. N. Y. Central R., 58 N. Y. 248; Messenger v. Dennie, 137 Mass. 197; Masser v. R. R., 68 Iowa, 602; Ecliff v. Ry., 64 Mich. 196; Ludwig v. Pillsbury, 35 Minn. 256; Achtenhagan v. Watertown, 18 Wis. 347 ; Brown v. Ry., 58 Me. 384; Twist v. R. R., 4 R. W. & Corp. L. J. 516; Shirk v. Ry., 42 N. E. 656.
   Opinion by

Mr. Justice Green,

A compulsory nonsuit having been entered in the court below, there is no testimony on the record except that which was presented by tbe plaintiff. Tbe injury was occasioned by a collision of the plaintiff and tbe defendant’s car. None of tbe testimony locates tbe plaintiff on the track in front of tbe car, prior to, or at tbe time of, tbe accident, but the whole of it establishes tbe fact of tbe collision, tbe detail of circumstances differing somewhat as it came from tbe different witnesses. Tbe plaintiff was at that time very nearly thirteen years of age. His account of tbe accident is very meager and is comprised in a single sentence. “I ran up Morgan street until I got near tbe corner and I kind of looked down and I never saw the car, and I tried to cross tbe same as any other boy and I was struck.” He added, “I didn’t know anything until I woke up in tbe hospital.”

Morgan street runs east and west below Yine street between Ninth and Tenth streets, tbe car was going down Tenth street, and tbe boy was going along tbe south side of Morgan street from Ninth to Tenth. He was going to a grocery store on the west side of Tenth street a few doors from tbe corner, and be attempted to cross Tenth street in a diagonal direction from tbe opposite corner, and not at tbe street crossing. He says be was running up Morgan street as be approached tbe corner of Tenth. Tbe witness Hobart testified that he saw the boy “ running from Morgan street in a diagonal direction, and tbe car came very fast and struck tbe boy and knocked him down tbe street.” The same witness said on cross-examination that tbe boy was struck by tbe front part of the car, be supposed it was tbe dasher. Tbe witness Callahan said the boy “ came running out of Morgan street when tbe car was going this way . . . and tbe first thing I knew I saw tbe boy going under tbe car.” “ Q. And be ran right on without stopping; ran on diagonally across tbe street towards tbe southwest? A. Yes, sir. Q. Running pretty fast ? A. Yes, sir, be was.” Tbe witness McCune said, u I was standing on tbe corner of Tenth and Morgan and seen tbe boy coming running out of Morgan street slanting like. I saw a car coming down at a pretty good rate of speed, and tbe boy got right even with tbe car, and tbe car struck him and knocked him down and be went under tbe front dasher, and be commenced rolling around.” Tbe same witness on cross-examination said, “ Q. Did you see him actually struck by tbe car? A. Yes, sir, struck by tbe. front part of tbe car. Q. You saw the car in the act of striking him, did you? A. Yes, sir, I saw the both of them come together; he goes down and he commences to roll until he got to 237 and then the car went over him. Q. He struck the side of the car ? A. He struck the pole in the front of the car. There is a pole that goes up this way to keep up the roof. Q. And he struck the corner of the car? A. Yes, sir.” The witness Stewart said, “ I was standing at my doorstep at 231^ North Tenth street, and I was looking out the street, and I seen this boy. I do not know what direction he came from, but he ran catacornered across the street towards Silcox’s grocery store. At that time a car came down at a rapid rate and struck him and he rolled three times and then it went over him.”

Another witness, Brown, said, “ When I saw this young boy he was coming across from Morgan street kind of catacornered, and this car was coming down at a pretty good gait, and when the boy started he ran off towards Silcox’s. The boy started to run across and when I seen him the dasher of the car had struck him and he was underneath the car, and it turned him over and over three times.” The only other witness who saw the actual collision, McNamee, said, “ The boy was turning out of Morgan street catacornered and the car struck him on the corner of the car toward the east.”

This was the whole of the testimony as to the actual collision. It proves affirmatively that the boy was running across the street, not at the crossing, at the moment he was struck, that he continued running until he suddenly came in contact with the car, and that either he struck the car, or was so close to it that the car struck him. It is not probable that he was on the track in front of the car as none of the testimony places him there, but whether he was or not, he could not recover under all our decisions upon that subject.

The present case is quite similar in its leading facts to Chilton v. Central Traction Company, 152 Pa. 425. The plaintiff was a child about five and a half years old who ran suddenly against the side of a passenger railway car and was injured. Paxson, C. J., delivering the opinion, said, “We have then the case of a boy who unexpectedly, and without any warning, runs from the pavement against a moving car passing at the time. The gripman saw the child plainly on the pavement before he put on Ms grip to go ahead fast. The cMld turned immediately and ran out into the street, and, for anything that appears, before the ear could be stopped, the accident occurred.” In the .case of Railroad v. Spearen, 47 Pa. 300, a child five years of age attempted to cross the track immediately in front of an approacMng locomotive and was injured. We held there was no right of recovery, although there was conflicting proof as to whether the wMstle was blown. Agnew, J., said in the opinion, “ Upon the undisputed facts, the case is simply one of a little thoughtless child running suddenly to cross before an engine, at a place where the engineer would not expect it, and being knocked down and injured before the engine could be ordinarily stopped. . . . Under these facts it is very clear that being where she had no right to be and darting ahead before the engine had she been an adult of discretion there could be no right of recovery. . . . The act of the child being the immediate cause of her own injury, it is not the remote negligence of the company we must look to but the proximate, that is the conduct of the engineer upon the engine at the time of the injury. Hence the omission to whistle before crossing, or the relatively unsafe distance between the engine and the train before it, cannot ■determine the case. They did not contribute to the accident, .and are no part of the company’s neglect of duty to this particular party under the circumstances. The injury was not at the crossing but below it where the plaintiff had no right to he, and where there was no duty upon the engineer to suppose she would be. . . . She suddenly ran upon the track and was struck just as she reached it. No time was left to those upon the engine to guard against the injury. The suddenness, shortness of time and unexpectedness of a child’s appearance before the engine made it exceedingly difficult, perhaps impossible to avoid the injury.”

So in the case at bar it was not the speed of the car that caused the injury, but the sudden and unexpected act of the plaintiff in runmng against the car, or immediately in front of the car if such was the fact, that occasioned the accident. There was no opportunity to guard against it and hence no breach of .duty in not doing so. The car was in full sight as the plaintiff ran towards it. Every witness examined saw it coming, and if the plaintiff had looked at all he could not have failed to see it. But lie did not and he ran against it utterly oblivious of its presence. Without deciding as matter of law that he was responsible for his own contributory negligence, it is enough to know that he suddenly and unexpectedly ran against the car, or so close to it that it necessarily ran against him, and for that reason camiot recover. In Hestonville Pass. Ry. Co. v. Connell, 88 Pa. 520, we held that while negligence cannot be imputed to a child of the age of six years and nine months, nevertheless it may be assumed that a child old enough to be trusted to run at large has discretion enough to avoid ordinary danger, and that persons who have business on the street may reasonably conclude that they are not to provide against possible damages that may result to such child by his own willful act. In this last case the boy attempted to get on the front platform of a street car while it was in motion and we held that the accident occurred “ from the sudden and unanticipated act of the child itself which could neither be foreseen nor guarded against,” and we reversed the judgment without a venire on that ground. The same rule was applied to a child between five and six years old, in the case of Balt. & Ohio R. R. Co. v. Schwindling, 101 Pa. 258, where the boy was in a place of danger where he had no right to be, and therefore he had no right of recovery. The case of Schnur v. Citizens Traction Co., 153 Pa. 29, it is argued for the appellant rules this. But the facts there raised a question of disputed testimony whether the boy was not on the track long enough before the car reached him to enable the gripman to see him if he had been attending to his business, and on that dispute the case had to go to the jury. There was evidence that the gripman was looking at the houses on the side of the road and not on the track in front, and also that the child was seen on the track when the car was two lengths and a half away, and although there was contrary testimony it was necessary to submit it all to the jury.

The case of Dominica laquinta v. Traction Co., 166 Pa. 63, is also relied upon for the appellant, but in that case also there was a conflict of testimony as to the acts and conduct of the boy, and this required a submission of the testimony to the jury. In the very recent case of Fleishman v. Neversink Mountain R. R. Co., 174 Pa. 281, a child six years old suddenly turned when in the street and ran towards an approaching car and on the track. We said, “There is no evidence of negligence on the part of the motorman'. He could not anticipate the sudden action of the child in attempting to cross the track, immediately in front of the car and his failure to do so was not negligence.” Upon a careful review of all the testimony we find that there is no conflict of evidence as to the acts and position of the plaintiff at the time of the accident, and as they make out a clear case of sudden and unexpected movement on the part of the plaintiff which resulted in the injury he cannot recover in this action.

Judgment affirmed.  