
    Supreme Court of Pennsylvania.
    CRISSY v. HESTONVILLE, MANTUA & FAIRMOUNT PASSENGER RAILWAY COMPANY.
    As a general rule a question of negligence must be submitted to a jury. Where the measure of duty is ordinary and reasonable care, it is always a question for the jury. There is no absolute rule as to what constitutes negligence.
    Where the measure of duty is not unvarying, where a higher degree of care is demanded under some circumstances than under others, where both the duty and extent of ■its performance are to be ascertained as facts, a jury alone can determine what is negligence, and whether it has been proved. Where negligence is concurrent a child will not be held to the exercise of the same degree of care and discretion as an adult.
    It is the duty of a railway company to cause its cars to come to a full stop to permit a passenger to get off.
    Error to the District Court of Philadelphia.
   Opinion delivered January 26th, 1874, by

Mercur, J.

The first assignment of error is not according to the rules. All the other assignments are to the charge of the court, and will he considered together. As a general rule, a question of negligence must be submitted to the jury. It should be where there is any substantial doubt as to the facts, or to the inferences to be drawn from them. Pennsylvania R. R. Co. v. Barnett, 9 P. F. Smith, 250; Johnson v. Bruner, 11 P. F. Smith, 58; McKee v. Bidwell, 30 Legal Intelligencer, 393.

There is no absolute rule as to what constitutes negligence. It is dependent upon the particular circumstances of the case. Where the measure of duty is not unvarying; where a higher degree of care is demanded under some circumstances than under others; where both the duty and the extent of its performance are to be ascertained as facts, a jury alone can determine what is negligence, and whether it has been proved. McCully v. Clark et al., 4 Wright, 406; Pennsylvania Canal Co. v. Bently, 16 P. F. Smith, 30. Where the measure of duty is ordinary and reasonable care, it is always a question for the jury. Westchester & Philadelphia Railroad Co. v. McElwee, 19 P. F. Smith, 311. Where negligence is concurrent, a child will not be held to the exercise of the same degree of care and discretion as an adult. Ranch v. Lloyd, et al., 7 Casey, 358; Pennsylvania Railroad Co. v. Kelly, Idem, 372; Smith v. O’Conner, 12 Wright, 218; Oakland Railway Co.v. Fielding, Idem, 320; Glassey v. H. M. & F. Passenger Railroad Co , 172; Kay v. Pennsylvania Railroad Co , 15 P. F. Smith, 269.

Now let us apply the law to the facts in this case. The plaintiff was a child of the age of thirteen years. He and his companion, a boy of the same age, signalled the driver as the defendant’s car crossed Thirteenth street. The car was slackened to receive them; they stood there by the side of the driver all the way out to Forty-first street and Lancaster avenue. No objection was made by either the driver or conductor to their riding-there; neither of them requested the plaintiff to step inside of the car;, the conductor came to him and collected his fare; -at Forty-first street: and Lancaster avenue, the plaintiff said to his companion in a voice sufficiently loud for the driver to hear, ‘T am going to get off here.” The-speed of the car was thereupon slackened; the plaintiff took hold of the-dasher with one hand, and the iron on the car with the other, and stepped off; the car continued in motion; the plaintiff’s foot slipped; he retained his hold to save himself; he was dragged two or three yards, and until the front wheel ran over his foot, causing the injury of which he complains. There was a crossing in the street where he desired to get off. .

In view of the plaintiff’s age, we think this evidence should have-been submitted to the jury; the jury should have determined whether the-plaintiff had been guilty of negligence; he should be held to the exercise of that degree of care and discretion ordinarily to be expected of a. child of his age, neither more or less: Smith v. O’Conner, supra. So in regard to the defendant’s alleged negligence. The fact that the plaintiff was suffered to stand upon and get off from the front platform, and whether the defendant exercised proper care under all the circumstances,, in not sooner stopping the car, should have been submitted to the jury. It is the duty of a railway company to cause its cars to come to a full stop, to permit a passenger to get off. Whether the defendant properly discharged his duty with a due regard to the age of the plaintiff, and of the notice of plaintiff’s desire to leave the car, should have been left to the jury. We think the learned judge erred in directing that the verdict should be for the defendant. The errors are sustained.

Judgment reversed, and a venire facias de novo awarded.  