
    THE HESTONVILLE PASSENGER RAILROAD CO. VS. GREY.
    A nine year old boy jumped on the front platform of a horse-ear at the invitation of the driver, after riding a square, the driver made him get off while the car was in motion, he fell and was injured ; held that the question of negligence was for the jury under all the circumstances of the case.
    Error to the Common Pleas of Philadelphia County. No. 93, January Term, 1876.
    On the 26th of January, 1874, Albert S. Grey, between nine and ten years old, was coming from school with three or four boys of his age. At the corner of Tenth and Arch streets they ran from the north pavement towards one of defendant’s ears that was moving west, and continued running in the middle of the street, along-side of the car. The driver of the car leaned from the front platform and said to the plaintiff: “Johnny, do you want a ride ?” Plaintiff then got upon the front platform and stood at the driver’s right side. As the car approached Eleventh street, and when the conductor started to go through the car towards the front platform, the driver said : “Johnny, get off; you rode far enough.” Plaintiff said: “I can’t, unless you stop.” The driver said : “No, jump off,” at the same time reaching out his hand, either menacing or actually pushing the plaintiff, driving him off the car, when he fell and was injured.
    The Court was requested by the defendant’s counsel to charge the jury as follows :
    1. That if the jury believe, from the evidence, that the plaintiff, by negligence on his part, contributed to the accident, the verdict should be for the defendants.
    2. That if the jury believe, from the evidence, that the plaintiff attempted to get on the car while it was in motion, and in consequence of such act on his part, the accident occurred, the verdict must be for the defendants.
    3. That it was negligence in law, for the plaintiff of admitted intelligence and discretion, rashly and impulsively, to jump on the car while the same was in motion.
    4. That as the plaintiff, from the evidence, was of sufficient discretion to understand the dangerous character of the .act which resulted in the accident, then, if by such act, he contributed to the accident, he cannot recover, and the verdict must be for the defendant.
    5. If the jury believe that the driver of the car invited or induced, and persuaded the plaintiff to get and stand upon the front platform of the car, and immediately thereafter, rashly and improperly, and carelessly and negligently, pushed or thrust him off the said car, on and to the street, that was such a wilful and malicious act on his part that the defendants are not liable for the injury resulting from it to the plaintiff.
    The judge in his charge to the jury affirmed the first two points, and, as to the others, said :
    8. I refuse to say that is the law in this case.
    4. As the plaintiff was of sufficient discretion to understand the dangerous character of the act which resulted in the accident, and he contributed to the accident, he cannot recover, and the verdict must be for the defendants.
    I refuse so to charge.
    5. If the jury believe that the driver of the car invited the plaintiff to stand on the front platform of the car, and, immediately after, carelessly pushed him off to the street, that was such a wilful and malicious act on his part that the defendants are not liable for the injury resulting from it.
    I refuse so to charge.
    November 12th, 1875, verdict for $3,200.00 in favor of plaintiff. The Railroad Company then took a writ of error, complaining of the judge's refusal to charge as requested in the 3rd, 4th and 5th points.
    
      Henry and Isaac Hazlehurst, Esqs., for plaintiff in error,
    argued that if there was any negligence on the part of the plaintiff, he cannot recover; Redfield on Railways Vol. 2, page 240; Wharton on Negligence, Section 300; Rathburn vs. Payne, 19 Wend. 399; Butterfield vs. Forrester, 11 East, 60; Railroad vs. Norton, 12 Harris, 469; Wilds vs. Hudson River Railroad Co., 24 N. Y., 432; Stiles vs. Geesey, 21 P. F. S., 439; Railroad vs. Wynne, 19 Ga., 440; Johnson vs. Railway, 20 N. Y., 73; Tuff vs. Warman, 94 E. C. L., 573. Proper caution is required in the case oí a child as well as an adult; Railroad Co. vs. Gladman, 15 Wall., 408. The boy could have foreseen and avoided, the danger, in this case, and hence he was guilty of negligence, and the point of plaintiff in error should have been affirmed; Railway Co. vs. Hassard, 25 P. F. S. 377; Brown vs. Railroad Co., 58 Maine, 384; Burk vs. Railroad Co., 49 Barbour, 529; Phila. and Reading R. R. Co. vs. Spearen, 11 Wright, 302; Hartfield vs. Roper, 21 Wendell, 620; Skelton vs. Railway Co., 2 L. R. C. P., 631. The boy was unlawfully upon the car, and hence is not entitled to recover; Railway Co. vs. Stout, 17 Wall, 661; Sher. & Red, Neg. Sections 25, 26; Phila. & R. R. R. Co. vs. Hummel, 8 Wright, 375; Gillis vs. Penna. R. R. Co., 9 P. F. S., 129; Mangan vs. Atterton, 1 Exch. L. R., 238; Hughes vs. McFie, 2 H. & C., 744; Stinson vs. Gardiner, 42 Maine, 248. The driver went expressly against his instructions in allowing or inviting the boy to ride on the front platform ; and consequently the company is not liable for the intentional wrong of the servant; Puryear vs. Thompson, 5 Hump. (Tenn.) 397; Campbell vs. Stairt, 2 Murph. (N. C.) 389; Snodgrass vs. Bradley, 2 Grant, 43; Garvey vs. Dung, 30 How., 315; Cox vs. Keahey, 36 Ala., 340; McManus vs. Cricket, 1 East, 106; Poulton vs. Railroad Co., 2 L. R. Q. B., 584; Roe vs. Birkenhead, 21 L. R. Exch., 9; Witaker vs. R. R. Co., 51 N. Y., 295; Wright vs. Wilcox, 19 Wendell, 343; Hay vs. Cohoes Co., 3 Barbour, 42; Isaacs vs. R. R. Co., 47 N. Y., 122; Flower vs. Penna. R. R. Co., 19 P. F. S., 210.
    
      Wm. McCandless, Esq., contra.
    
   The Supreme Court affirmed the ruling of the Court below, on February 12th, 1876, in the following opinion :

Per Curiam.

It would have been error in the Court below to have affirmed the third and fourth points of the plaintiffs, of which they complain in their first and second assignments of error. They would have taken from the jury the material question of fact what degree of care and discretion was ordinarily to be expected of a child of the age of the plaintiff below. We see nothing in the evidence like an admission which precluded the jury from the consideration of this question. The fifth point which forms the subject of the third error assigned, plainly involved a contradiction in its terms which could not have been rightly affirmed. It asked the -judge to instruct the jury that a rash, improper, careless and- negligent act ol the servant of the defendants below, was such a wilful and malicious act on his part that they were not liable for the injury resulting from it to the plaintiff. None of the specifications of error therefore can be sustained.

Judgment affirmed.  