R. Co. 52 Pa. Super. Ct. 568; Gorman v. Philadelphia, 82 Pa. Super. Ct. 136; Glatfelter v. North York, 85 Pa. Super. Ct. 353; Evers v. Philadelphia Traction Co. 176 Pa. 376, 53 Am. St. Rep. 674, 35 Atl. 140; Woeckner v. Erie Electric Motor Co. 182 Pa. 182, 37 Atl. 936, 3 Am. Neg. Rep. 601; Del Rossi v. Cooney, 208 Pa. 233, 57 Atl. 514; Henderson v. Continental Ref. Co. 219 Pa. 384, 123 Am. St. Rep. 668, 68 Atl. 968; Phillips v. Duquesne Traction Co. 8 Pa. Super. Ct. 210.

The question of contributory negligence was for the jury.

Locomotive

Edsberg v. Baldwin Works, 240 Pa. 614, 88 Atl. 8; Virgilio v. Walker, 254 Pa. 241, 98 Atl. 815; Jester v. Philadelphia, B. & W. R. Co. 267 Pa. 10, 109 Atl. 774; Hastings v. South Shore R. Co. 272 Pa. 212, 116 Atl. 155; Cramer v. Aluminum Co. 239 Pa. 120, 86 Atl. 654; Litwinavage v. Schuylkill R. Co. 280 Pa. 53, 124 Atl. 293; Parznik v. Central Abattoir Co. 284 Pa. 393, 131 Atl. 372.

Messrs. Harold C. Roberts and George Gowen Parry, for appellee:

It is the duty of a plaintiff seeking to recover, where the gravamen of the action is the alleged negligence of the defendant, to show a case clear of contributory negligence on his own part.

Waters v. Wing, 59 Pa. 211; Pennsylvania Canal Co. v. Bentley, 66 Pa. 30; Tolson V. Philadelphia Rapid Transit Co. 248 Pa. 227, 93 Atl. 1017; Haertel v. Pennsylvania Light & P. Co. 219 Pa. 640, 69 Atl. 282; Lerner v. Philadelphia, 221 Pa. 294, 21 L.R.A. (N.S.) 614, 70 Atl. 755; Dugan v. Susquehanna Coal Co. 241 Pa. 565, 88 Atl. 787; Benner v. Philadelphia & R. R. Co. 262 Pa. 307, 2 A.L.R. 759, 105 Atl. 283; Beatty v. Gilmore, 16 Pa. 463, 55 Am. Dec. 514; Pennsylvania Canal Co. v. Bentley, 66 Pa. 30.

A presumption of contributory negligence on the part of the plaintiff arises from the fact that the child, when injured, was alone and unprotected in a city street several blocks from its home, and this presumption, in the absence or any evidence of care exercised by the plaintiffs, is conclusive.

Glassey v. Hestonville, M. & F. Pass. R. Co. 57 Pa. 172; Pittsburgh, A. & M. R. Co. v. Pearson, 72 Pa. 169; Pennsylvania R. Co. v. James, 81 Pa. 194; Cauley v. Pittsburgh, C. & St. L. R. Co. 95 Pa. 398, 40 Am. Rep. 664; Parrotta v. Pennsylvania & M. Valley R. Co. 40

Pa. Super. Ct. 138; Del Rossi v. Cooney, 208 Pa. 233, 57 Atl. 514; Kay v. Pennsylvania R. Co. 65 Pa. 269, 3 Am. Rep. 628; Philadelphia & R. R. Co. v. Long, 75 Pa. 257, 12 Am. Neg. Cas. 535; Pennsylvania R. Co. v. Lewis, 79 Pa. 33; Smith v. Hestonville, M. & F. Pass. R. Co. 92 Pa. 450, 37 Am. Rep. 705; Moore v. Pennsylvania R. Co. 99 Pa. 301, 44 Am. Rep. 106; Gillespie v. McGowan, 100 Pa. 144, 45 Am. Rep. 365; McMullen v. Pennsylvania R. Co. 132 Pa. 107, 19 Am. St. Rep. 591, 19 Atl. 27; Westerberg v. Kinzua Creek & K. R. Co. 142 Pa. 471, 24 Am. St. Rep. 510, 21 Atl. 878; McCool v. Lucas Coal Co. 150 Pa. 638, 24 Atl. 350; Johnson v. Reading City Pass. R. Co. 160 Pa. 647, 40 Am. St. Rep. 752, 28 Atl. 1001; Jones v. United Traction Co. 201 Pa. 346, 50 Atl. 827; Davis v. Westmoreland County, 222 Pa. 356, 71 Atl. 538; Duffy v. Sable Iron Works, 210 Pa. 326, 59 Atl. 1100, 17 Am. Neg. Rep. 710; Pollack v. Pennsylvania R. Co. 210 Pa. 634, 105 Am. St. Rep. 846, 60 Atl. 312; McKinney v. Baltimore & O. R. Co. 247 Pa. 217, 93 Atl. 287; Rapaport v. Pittsburgh R. Co. 247 Pa. 347, 93 Atl. 493; Darbrinsky v. Pennsylvania Co. 248 Pa. 503, L.R.A.1915E, 781, 94 Atl. 269; Kuehne v. Brown, 257 Pa. 37, 101 Atl. 77; Shaffer v. Mowery, 265 Pa. 300, 108 Atl. 654; Henne v. Peoples' Street R. Co. 1 Pa. Super. Ct. 311; Buente v. Pittsburg, A. & M. Traction Co. 2 Pa. Super. Ct. 185; Karahuta v. Schuylkill Traction Co. 6 Pa. Super. Ct. 319; Phillips v. Duquesne Traction Co. 8 Pa. Super. Ct. 210; Feehan v. Dobson, 10 Pa. Super. Ct. 6; Addis v. Hess, 29 Pa. Super. Ct. 505; Corpies v. Sand Co. 31 Pa. Super. Ct. 107; Sullenberger v. Chester Traction Co. 33 Pa. Super. Ct. 13; Distasio v. United Traction Co. 35 Pa Super. Ct. 406; Murray v. Scranton R. Co. 36 Pa. Super. Ct. 576; Parrotta v. Pennsylvania & M. Valley R. Co. 40 Pa. Super. Ct. 138; Safranski v. Seaman, 40 Pa. Super. Ct. 219; Thompson v. Delaware, L. & W. R. Co. 41 Pa. Super. Ct. 617; Fineman v. Philadelphia Rapid Transit Co. 42 Pa. Super Ct. 379; Loughran v. Thomas Bros. Co. 65 Pa. Super. Ct. 302; Watson v. Highland Grove Traction Co. 68 Pa. Super. Ct. 332; Zimmerman v. Younker, 84 Pa. Super. Ct. 36.

Walling, J., delivered the opinion of the court:

Morris street, extending in an easterly and westerly direction,

crosses Eleventh street, Philadelphia, at right angles. There is a meat market on the northwest corner, in front of which, in Morris street, a truck was standing on December 20, 1924, when plaintiffs' child, a boy four or five years old, in passing south on the west side of Eleventh street, stepped out from behind the standing truck, and was killed by defendant's east-bound auto truck. The evidence as to the speed of the latter and other matters bearing on the question of defendant's negligence was conflicting. The case was submitted to the jury, and a verdict of $3,300 given plaintiffs for the death of the child. Later the trial court entered judgment for the defendant non obstante veredicto on the sole ground that the presence of the child in the street, unattended, raised a presumption of negligence against the parents, which the proof failed to rebut; the only evidence as to that was the testimony of the father, who lived near by, that he thought the child was playing upstairs. The trial court's position, while not without some semblance of support in the cases, is untenable. The burden is on plaintiff to prove defendant's negligence without

Evidence-bur

den of proof- disclosing fault on his part, but he is

contributory negligence.

not required to disprove contributory negligence. Murphy v. Philadelphia Rapid Transit Co. 285 Pa. 399, 406, 132 Atl. 194; Martin v. Southern Pennsylvania Traction Co. 261 Pa. 96, 104 Atl. 397; Waltosh v. Pennsylvania R. Co. 259 Pa. 372, 103 Atl. 55; McManamon v. Hanover Twp. 232 Pa. 439, 81 Atl. 440; Coolbroth v. Pennsylvania R. Co. 209 Pa. 433, 58 Atl. 808; Fitzpatrick v. Union Traction Co. 206 Pa. 335, 55 Atl. 1050; Baker v. Westmoreland & C. Natural Gas Co. 157 Pa. 693, 27 Atl. 789; Bradwell v. Pittsburgh & W. E. Pass. R. Co. 139 Pa. 404, 20 Atl. 1046; Pennsylvania Canal Co. v. Bentley, 66 Pa. 30. A plaintiff need not prove negatively that he was not guilty of contributory negligence

(Clark v. Lancaster, 229 Pa. 161, 78 Atl. 86), while he who avers a fact in excuse of his own misfeasance must prove it (Beatty v. Gilmore, 16 Pa. 463, 55 Am. Dec. 514). Parents are presumed to do their duty, and the mere fact that a child of tender

age is momentarily Negligence-of found alone in a parent-child in public street does street.

Evidence-hap

gence.

not as matter of law establish the contrary. The mere happening of an accident neither proves negligence pening of accinor contributory dent-neglinegligence. Knowingly to permit a small child to wander unprotected upon city streets is want of care, but here the record is barren of any evidence of such permission. The presence of a child upon the street may be the result of parental negligence or in spite of its vigilance, and, in the absence of any explanation, a court cannot declare it the former. The question of parental care, or the Negligencelack of it, is one of jury-question fact, fact, and and usually

of care.

for the jury. McKinney v. Baltimore & O. R. Co. 247 Pa. 217, 93 Atl. 287; Davis v. Westmoreland County R. Co. 222 Pa. 356, 71 Atl. 538; Del Rossi v. Cooney, 208 Pa. 233, 57 Atl. 514; Enright v. Pittsburg Junction R. Co. 204 Pa. 543, 54 Atl. 317, 9 Am. Neg. Rep. 364; Jones v. United Traction Co. 201 Pa. 346, 50 'Atl. 827; Woeckner v. Erie Electric Motor Co. 182 Pa. 182, 37 Atl. 936, 3 Am. Neg. Rep. 601; Evers v. Philadelphia Traction Co. 176 Pa. 376, 53 Am. St. Rep. 674, 35 Atl. 140; Lederman v. Pennsylvania R. Co. 165 Pa. 118, 44 Am. St. Rep. 644, 30 Atl. 725; Dunseath v. Pittsburgh, A. & M. Traction Co. 161 Pa. 124, 130, 28 Atl. 1021; Philadelphia & R. R. Co. v. Long, 75 Pa. 257, 12 Am. Neg. Cas. 535; Pittsburgh, A. & M. R. Co. v. Pearson, 72 Pa. 169; Zimmerman v. Younker, 84 Pa. Super. Ct. 36; Loughran v. Thomas Bros. Co. 65 Pa. Super. Ct. 302; Fineman V. Philadelphia Rapid Transit Co. 42 Pa. Super. Ct. 379. Corpies v. Sand Co. 31 Pa. Super

Ct. 107; Addis v. Hess, 29 Pa. Super. Ct. 505; Karahuta v. Schuylkill Traction Co. 6 Pa. Super. Ct. 319. Parents are not re

-care of child. quired to do the impossible in caring for their children. See Henne v. Peoples' Street R. Co. 1 Pa. Super. Ct. 311, 316. In cases where the court has adjudged the parents guilty of negligence, they were shown otherwise culpable, as where the injury occurred in the presence of the parent (Johnson v. Reading City Pass. R. Co. 160 Pa. 647, 40 Am. St. Rep. 752, 28 Atl. 1001), or where the child had been sent into the street upon an errand (Sullenberger v. Chester Traction Co. 33 Pa. Super. Ct. 12), or was knowingly suffered to go upon the street (Rapaport v. Pittsburgh R. Co. 247 Pa. 347, 93 Atl. 493), or where the parent permitted the child to engage in a hazardous business (Smith v. Hestonville, M. & F. Pass. R. Co. 92 Pa. 450, 37 Am. Rep. 705; McCool v. Lucas Coal Co. 150 Pa. 638, 24 Atl. 350), or permitted it, in his presence, to do the act resulting in the injury (Kuehne v. Brown, 257 Pa. 37, 101 Atl. 77; Watson v. Highland Grove Traction Co. 68 Pa. Super. Ct. 332).

There are also cases where children injured upon railroad tracks have been held trespassers in spite of their tender years, of which Duff v. Allegheny Valley R. Co. 91 Pa. 458, 36 Am. Rep. 675; Cauley v. Pittsburgh, C. & St. L. R. Co. 95 Pa. 398, 40 Am. Rep. 664; Moore v. Pennsylvania R. Co. 99 Pa. 301, 44 Am. Rep. 106; Westerberg v. Kinzua Creek & K. R. Co. 142 Pa. 471, 24 Am. St. Rep. 510, 21 Atl. 878, are typical. In the instant case the child was on the public highway, where of right people might be, and we have found no case where the court has declared the parents negligent, unless something more appeared than the child's mere presence in the street on the occasion of the accident. Appellee relies upon Glassey v. Hestonville, M. & F. Pass. R. Co. 57 Pa. 172. That case, however, turned upon the contention,

denied by the lower court, that a father who knowingly permitted his four year old child to be upon the public streets unprotected, was negligent. This court there says: "Now it would be strange were we not to hold that knowingly to permit a child less than four years old to run at large and without any protector, in the public streets of a large city, traversed constantly by railway cars and other vehicles, is not a breach of parental duty. A father has no right to expose his child to such dangers, and if he does, he fails in performance of his duty, and is guilty of negligence. The security of the community, and especially of children, demands the assertion of this doctrine."

There is nothing in the body of the opinion to the effect that the mere presence of a child upon the street, without more, raises a presumption of negligence against the parents. There, however, the second of defendant's five points states such a proposition; the trial court refused them all; this court, in reversing, said they should have been affirmed, and granted a new trial. It is a grave question whether the court intended to approve the proposition stated in the second point. In any event, it was not discussed in the opinion nor necessary to the decision. True, the point appears in the syllabus, and has sometimes been referred to in later cases, but never followed. The general rule of that case, however, as to the effect of knowingly permitting very young children, unguarded, upon the streets, has been, and is generally, accepted as sound. In Parrotta v. Pennsylvania & M. Valley R. Co. 40 Pa. Super. Ct. 138, the judgment for plaintiff was affirmed. So, what is there said (at page 142) about the presence of a small child, unattended, upon the street, raising a rebuttable presumption of negligence upon part of its parents, is dicta, probably based upon the case to which we have just referred. Doubtless where, as an undisputed fact, a very small child is knowing

ly suffered to be unaccompanied upon the public streets, the parents' negligence may be declared as matter of law (Phillips v. Duquesne Traction Co. 8 Pa. Super. Ct. 210), but whether it is negligent to send a child six years old two squares to school is for the jury (Parznik v. Central Abattoir Co. 284 Pa. 393, 131 Atl. 372).

The defendant's motion for a new trial is still pending. As judgment was entered for the defendant notwithstanding the verdict, that motion was of little moment; but, as

er circumstances bearing on the question of damages (Hoon v. Beaver Valley Traction Co. 204 Pa. 369, 54 Atl. 270), the failure of the trial judge to instruct the jury to deduct from the probable earnings of the boy the expense of his support and maintenance (Peters v. Bessemer & L. E. R. Co. 225 Pa. 307, 74 Atl. 61; Cosgrove v. Hay, 54 Pa. Super. Ct. 175), or to charge that the negligence of the parents or either of them would defeat the action (Darbrinsky v. Pennsylvania Co. 248 Pa. 503, L.R.A.1915E, 781, 94 Atl. 269), we conclude a new trial should be ordered.

The judgment is reversed, and a new trial is granted.

I. Introduction, 209.

1. Introduction.

The question which is the subject of this annotation only arises where the child is non sui juris; the question is then presented as to whether or not its parents or guardians were negligent in permitting it to be in the street unattended under the circumstances of the particular case. The negligence of the parents or custodians in such a case necessarily depends, among other things, upon the age and intelligence of the child. And, where the age and intelligence of the child make it proper for the parents to allow it to go unattended, the child is then bound to exercise, while in the street, the care which would be expected of a child of its age and intelli51 A.L.R.-14.

gence, and which relieves its parents from negligence in allowing it to be upon the street unattended; in other words, it must exercise the care and intelligence which prevent its parents from being guilty of negligence in allowing it to be unattended upon the street.

According to to the very decided weight of authority, the negligence of the parent or guardian having the custody of an infant, in exposing it to danger, will not be imputed to the child so as to preclude its right of action against a third person by whose negligence it is injured. Naturally, in jurisdictions where that view prevails, the question now under annotation will not arise except in actions