
    Hestonville, Mantua & Fairmount Passenger Railroad Co. v. Biddle and Wife.
    In an action against a railroad, company for negligence the evidence was to the effect that the plaintiff’s son, about twelve years of age, with two other boys, got on tbe front step of a street car, which was driven by another boy. The driver was acting as conductor and driver and was inside collecting fares. The conductor, after warning the hoys off several times, came out, and, while tbe car was in motion, pushed the boy, who was driving, away from the brake and off the car, whereupon the plaintiff’s son, in attempting to get off, fell under the wheels and was killed. The court charged that if an ordinarily competent and careful driver would have stopped the car, it was negligence in the driver not to stop, and the plaintiff could recover. Held, not to he error.
    The case of Biddle v. R. R. Co., 112 Pa. 551, followed.
    
    
      Per Curiam. — While it was the duty of the driver to put the boys off, using a reasonable amount of force, if necessary, yet he was not justified in putting them off by force or compelling them to jump off while the car was in motion. The case differs essentially in its facts from Cawley v. E. E., 98 Pa. 498.
    Jan. 15, 1889.
    Error, No. 399, Jan. T. 1888, to C. P. No. 3, Pliila. Co., to review a judgment on a verdict for plaintiffs, in an action on the ease, by Erancis F. Biddle and wife, for damages for the death of the minor son of the plaintiffs, through the alleged negligence of. the defendant railroad, at Sept. T. 1883, No. 405.
    This case was tried before, a compulsory non-suit entered, and the case reversed by the supreme court. See 112 Pa. 551.
    The evidence was to the following effect, upon the second trial, before Finletter, P. J.:
    The son of the plaintiffs, aged twelve years, was, on Sept. 16, 1883, with two other boys named Gerhart, of about the same age, on Lancaster Avenue, near Fairmount Park, where the defendant’s cars run. A one-horse car, in charge of a driver only, and belonging to the defendant, was standing at the terminus. The driver was either in the car or in the neighborhood. A boy named Salnack was holding the reins. He started the car and called to the Ger-hart boys to get on. Gerhart testified that Biddle asked if he could get on and Salnack said: “ I don’t own the car, Clarence. I can’t let you on.” Plaintiff in error, in his paper book, says young Biddle asked the second time and Salnack said: “ Well, yes; get on, get on.” But this does not appear in the printed testimony. Biddle got on and Salnack started the car. Biddle was then on the front step of the car. The driver came out and said “ Look out! you will break your legs,” and then went inside again. He came out again, when the car was near George’s Hill, and said: “You boys had better get off,” and again went inside. He came out again, when the car was near Fifty-second Street, and said: “You boys get off now.” He went into the car again and, shortly after, came out and said: “You boys get off of here.” Salnack then said: “Wait, Clarence, I will stop the car,” which he tried to do, when the driver pushed Salnack away from the brake, so that he fell into the street, and Biddle, who was standing on the lower step, in trying to get off, fell under the car, was run over and killed. The driver made an effort to put on the brake but failed to do so in time. This evidence was corroborated by that of others who saw the accident. The driver testified that the car was going slowly and that he did not push Salnack away but tried to reach the brake. The driver further testified that there was no Slawson box on the car; that he would put the lines around the brake and let the horse go alone while he collected fares ; and he thought it was as well to let Salnack drive as to let the horse go alone.
    The defendant presented, inter alia, the following points, which were refused:
    “2. If Clarence Biddle, the deceased, was a trespasser or intruder on the defendant’s car, and, while there as such, was ordered off the ear by the conductor or driver, and if the car was moving slowly, and as the driver or conductor had no reason to apprehend danger to him in getting off from the lower step of the •car while it was thus moving, the plaintiffs cannot recover, and the verdict should be for the defendant.”
    “ 4. If the deceased, Clarence Biddle, was on the defendant’s •car as a trespasser, was ordered by the conductor or driver to get off "the car, was not touched by the driver, was not thrown off the car, if the front step is one foot and a fraction of an inch from the track, •and if the car was going at a slow' rate of speed, if, under these circumstances, the boy was frightened by the manner in which the ■order was given, the plaintiffs cannot recover, and the verdict should be for the defendant.”
    “ 5. If Clarence Biddle and other boys were trespassers, it was •the duty of the conductor or driver to order them off, and if he did not touch them or throw them off but he only ordered them off, while the car was moving slowly, there is nothing in the warning or ordering them off that renders the company liable, and the verdict should be for the defendant.”
    “ 6. If Clarence Biddle, the deceased, was a trespasser or intruder, and not a passenger, the defendant cannot be liable, except for intentional injury, or by gross negligence; and as there is no •evidence of such gross negligence, the verdict should be for the defendant.
    “ Y. Under all the evidence, the verdict should be for the •defendant.”
    The court charged, inter alia, as follows: “Having fixed the position of the boy and the rate at which the car was going, the question arises whether there was anything in what was said or done or omitted to be done by the driver which an ordinarily careful •driver would not have said or done or omitted upon that occasion. If there was, then the driver is negligent. Would an ordinarily competent and careful driver have stopped the car upon that occasion 5 If he would, then it was negligence in the driver not to have stopped the car upon such an occasion.”
    v erdict for plaintiffs for $2500, and judgment thereon.
    
      The assignments of error specified, 1, the portion of the charge given above, quoting it; and, 2-6, the refusal of defendant’s points, quoting them.
    
      Samuel Gustine Thompson, for plaintiffs in error.
    The boy was an intruder and not a passenger and as such the defendant could only be liable for gross negligence or wilful misconduct. Moore v. R. R., 11 W. N. C. 311; R. R. v. Hummell, 44 Pa. 375; Cauley v. R. R., 95 Pa. 399; Duff v. Allegheny Valley R. R., 91 Pa. 458. If the car was moving slowly, and if there was no reason to apprehend danger, as the boy was a trespasser, there was no recklessness or gross negligence on the part of the driver.
    If the driver, in performance of his duty, ordered off the boy who was trespassing, and the boy became frightened and fell, the fright, if any, was the consequence of his being where he had no right to be, and the defendant is not liable. Flower v. R. R., 69 Pa. 210.
    
      Richard P. White, with him Geo. H. Earle, Jr., for defendant in error.
    "Whatever has been decided by this court on one writ of error, cannot be examined on a subsequent writ of error brought in the same suit. Supervisors v. Kennicott, 94 U. S. 498; Clark v. Keith, 106 U. S., 464; Chaffin v. Taylor, 116 U. S. 567.
    Whilst a railway company is not bound to the same degree of care in regard to mere strangers who are unlawfully upon its premises that it owes to a passenger, it is, nevertheless, not exempt from responsibility to such strangers for injuries arising from its negligence or for its tortious acts. Arnold v. R. R., 115 Pa. 140; R. R. v. Toomey, 91 Pa. 256; R. R. v. Lewis, 79 Pa. 33; Hydraulic Works v. Orr, 83 Pa. 832; R. R. v. Hummell, 44 Pa. 375; Biddle v. R. R., 112 Pa. 551.
    Plaintiffs in this case are not pecuniarily able to reprint the argument submitted on the former appeal, but, in addition, refer to the following cases, as to liability of railroad for injuries resulting from forcible ejection of a passenger from a moving train : Sanford v. R. R., 23 N. Y. 343; R. R. v. Brockett, 121 U. S. 637; Ramsden v. R. R., 104 Mass. 121; and R. R. v. Hack, 66 Ill. 242.
    Jan. 28, 1889.
   Per Curiam,

This case presents no features essentially different from those which it did when it was here before. See 112 Pa. 551. We then held that it was error in the court below to enter a compulsory non-suit. It now comes up with a verdict in favor of the plaintiff.

, Clarence Biddle, the lad who unfortunately lost his life by this accident, was upon the defendant company’s car by the sufferance of the conductor. The car was what is popularly known as a “ bobtail ” car, i. e. a car with a Slawson box, and a driver who also acts as conductor. At the time of the injury, the car was being driven by a boy. The latter invited one at least of the party of boys, of whom the deceased was one, to get on the car. Young Biddle got on about the same time, and the conductor subsequently shoved one of the boys off the car, and compelled the others to get off whilst the car was in motion. If a company permits a boy to drive its car, and such driver invites or encourages other boys to get on, it is well to understand that, if the conductor subsequently puts them off, he should stop his ear for that purpose. It was undoubtedly his duty to put them off, using a reasonable amount of force, if necessary; but to put them off by force, or compel them to jump off, while the car was in motion, was quite a different matter. This case differs essentially in its facts from Cawley v. The Railroad Company, 93 Pa. 498, and the other cases cited by the learned counsel for the plaintiff in error.

Judgment affirmed.. T. R.  