Kelly v. Pittsburg & B. Traction Co Strawbridge v. Bradford, 128 Pa. 200, 18 Atl. 441, 5 L. R. A. 515, 15 Am. St. Rep. 670, where the injured boy was 13 years and 4 months old: "It is claimed, however, that the plaintiff's own negligence contributed to his injury, and prevents a recovery, and that the court should have so instructed the jury. But it must be borne in mind that this plaintiff had not attained the age when sufficient capacity to be sensible of danger and to avoid it is presumed. Nagle v. Railroad Co., 88 Pa. 35, 32 Am. Rep. 413. A boy's capacity is the measure of his responsibility, and, if he has not the ability to foresee and avoid the danger to which he may be exposed, negligence will not be imputed to him if he unwittingly exposes himself to it. Phila. Ry. Co. v. Hassard, 75 Pa. 367; Crissey v. Railway Co., 75 Pa. 86. When an infant who has not reached the age of discretion is charged with concurrent negligence, it becomes important to inquire if he had sufficient understanding to comprehend and guard against the peril he was in, and this matter is ordinarily to be considered by the jury, in connection with the other circumstances of the case, and under proper instructions from the court." Turning to the judgment in favor of Mrs. Kelly, the mother, we are at a loss to understand how she recovered, for she never had a cause of action against the defendant, and, even if she had, she is not on the record as suing for herself. It is urged that these objections were not made in the court below, and if this be true, as we assume it is, it was unfair to the learned trial judge not to have called his attention to what would have led him to direct a verdict against the mother. If we could avoid disturbing this judgment, we would do so, for the reason that the objections now made were not raised below; but we must consider them here because one of them, at least, is fundamental, and was always in the way of the mother's right to recover. When the boy was hurt, his father, Patrick Kelly, was living. The suit was originally brought by the father in his own right and as the next friend of his son. The cause of the father's action was the alleged negligence of the traction company, resulting in injuries to the minor son, in consequence of which his services would be lost to the father during his minority. The cause of action arose May 6, 1897. At that time there was nothing for which the mother could have sued, and the appellant was guilty of nothing subsequently which gave her a cause of action against it. boy was not killed, but simply injured; and in such a case the cause of action is in the father alone, as we have held, for reasons which need not be repeated here, in Fairmount & Arch Street Passenger Railway Co. v. Stutler, 4 Pa. 375, 93 Am. Dec. 714, and in Pennsylvania Railroad Co. v. Bantom, 54 Pa. 495. This cause of action was not split by the death of the father, and until the Legislature gives the mother the right to sue in a case of injury to a minor child, caused by the negligence of another, and not resulting in death, we cannot Daum v. North Jersey St. Ry. Co give it to her. The act of June 26, 1895 (P. L. 316), gave Mrs. Kelly no right to sue. It simply gives a wife, under certain circumstances, equal power, control, and authority with the father over a minor child, and an equal right to its custody and services. It does not appear from the testimony that the family circumstances were such at the time of the injury as gave Mrs. Kelly, under the act of 1895, this equal right with her husband in the power, control, and authority over her child, and to his custody and services. Two years after the suit was brought, the father died, and about six months after his death the following substitution was made on the record: "And now, June 7, 1900, death of Patrick Kelly suggested, and, on motion of L. B. Cook, Mary Kelly, mother of Charles Kelly, is substituted instead Patrick Kelly, deceased, as next friend," etc. The substitution was only of a next friend for the minor boy, to enable him to prosecute his suit. It affected the case only as it would have been affected by the substitution of any one else as the next friend of the boy, and it could not have been for any other purpose. Mrs. Kelly, as the widow of Patrick Kelly, and in her individual capacity, could not have been substituted as the personal representative of the deceased, who had sued for himself; and, as stated, there was no place for her on the record to sue in her own right, because she had no cause of action against the appellant. But she did not even attempt to get on the record as the plaintiff in her own right, and yet there is a judgment for her in such right. It must be, and is now, reversed. The judgment for the son, Charles H. Kelly, is affirmed. DAUM V. NORTH JERSEY ST. RY. Co. (Supreme Court of New Jersey, Feb. 24, 1903.) [54 Atl. Rep. 221.] Street Railways-Injury to Laborer in Street-Signals-Assumption of Duty. Plaintiff, engaged in work on the public street which necessitated his kneeling on defendant's track to hand boards down into a trench, was injured by defendant's car, which came upon him, without warning, contrary to the usual custom, which was for those in charge of the car to ring a gong when approaching the point where plaintiff was at work. Plaintiff looked before kneeling, and there was no car in sight. He did not look again, and the car came around the curve, 250 feet distant, about a minute later, and struck him: held, assuming that the company was under no duty to give a warning of the approach of the car, whether it was negligent in failing to do so, having once assumed such duty, was a question for the jury. Same-Same-Care Required in Looking Out for Cars. Whether the plaintiff was guilty of contributory negligence, in failing to look repeatedly for approaching cars, was a question for the jury. Same Same-Trespassers. In an action against a street railway for injuries to a person working in the street, the absence of proof that plaintiff's employer had a right to prosecute any work on the street does not justify the conclu Daum v. North Jersey St. Ry. Co sion that plaintiff was a trespasser as to defendant, there being nothing in the record to show that the presence of defendant's tracks in the street was authorized. Same-Same-Presumptions. There is no presumption that the prosecution of a work by a corporation in the public streets is unauthorized and its employees trespassers. Same Same-Evidence. In an action against a street railway for personal injuries, one of plaintiff's witnesses having testified on cross-examination that he had once been injured by one of defendant's cars, a question, "Did you preseut any claim to the company?" was properly excluded. Same-Same-Same. A question asked the motorman, "Do you know whether [plaintiff] saw you?" was properly excluded. Witnesses-Impeachment. A written statement, signed by one of plaintiff's witnesses, offered for the purpose of impeaching his testimony, no foundation having been laid, was properly excluded. Error to court of common pleas, Hudson county. Action by John F. Daum against North Jersey Street Railway Company. From a judgment for plaintiff, defendant brings error. Affirmed. Argued November term, 1902, before GUMMERE, C. J., and VAN SYCKEL, FORT, and PITNEY, JJ. Vredenburgh, Wall & Van Winkle, for plaintiff in error. GUMMERE, C. J. This action was brought to recover for personal injury received by the plaintiff under the following circumstances: He was an employee of the Hudson County Gas Company, which at the time when he received his injury was engaged in laying a gas main through Summit avenue, in the city of Jersey City. For the purpose of laying the main the company had opened a trench in the street, about four feet wide, between the westerly curb line and the tracks of the defendant company, the east line of the trench being about three feet distant from the nearest rail of the car track. The duty of the plaintiff was to carry pieces of lumber from a point where it was piled to the trench, and there deliver it to other employees, who were at work in the trench, and who used the lumber for the purpose of blocking up the gas main in order to keep it level. It was while engaged in doing this work that he received the injury on account of which the suit was brought. The evidence produced by the plaintiff shows that for the purpose of delivering these pieces of timber, or braces, to his fellow workmen, he went upon that part of the street between the trench and the car track, and knelt down there with his back to the tracks, and with one of his feet upon or over the nearest rail, and that, while engaged in handing the braces to the men in the trench, one of the cars of the defendant company came by and ran over his foot. It further appeared that the plaintiff, when he knelt down, looked in the direction from which the car approached, and Daum v. North Jersey St. Ry. Co that at that time there was no car in sight; that he did not look again before the accident happened; that the accident occurred about a minute after he knelt down; that the car came into Summit avenue at "Five Points," which was about 250 feet distant from the point where the plaintiff was kneeling; that no warning was given of the approach of the car, either by the ringing of a gong or otherwise; and that it was the custom of those of the defendant company's employees who were operating these cars to ring a gong when approaching the point where the gas company's servants were at work. At the close of the plaintiff's case there was a motion to nonsuit, upon the ground that no negligence was shown on the part of the defendant company or its employees, and upon the further ground that it affirmatively appeared that the plaintiff contributed by his own negligence to the injury which he received. This motion was refused by the trial judge, and the first assignment of error is directed to this refusal. Assuming, but not admitting, that it cannot be said, as a. matter of law, that it is the duty of a street railway company to give notice to persons working in a public highway, in dangerous proximity to its tracks, of the approach of its cars, it is at least a question for the jury, and not the court, whether, when the company assumes such a duty, its failure to perform it in a given instance is not negligence. And that was the situation in the case before us. As has already been stated, it was the custom of the defendant's employees, who were operating its cars, to ring a gong when approaching the place where the servants of the gas company were at work. It is further contended, on the point that no negligence was shown on the part of the defendant or its employees, that, so far as the proofs showed, the gas company was prosecuting its work in the public street without right, and that consequently the plaintiff was a trespasser on the track of the defendant. But if absence of proof on the subject justifies the conclusion that the gas company was without authority to do the work in which it was engaged, it must also be concluded that the presence of the defendant's tracks in the street was unauthorized, for there is an entire absence of proof on that subject also. Consequently, notwithstanding the unwarranted action of the gas company (if it was such), the plaintiff was not a trespasser so far as the defendant company was concerned. But we do not consider that want of proof on the subject justifies the conclusion that the gas company and its employees were not lawfully prosecuting the work in which they were engaged. In the absence of proof, there is no presumption either in favor of or against such a conclusion. There being no evidence that the plaintiff was a trespasser upon the track of the defendant company, it was not entitled to have its responsibility to him limited to injuries which were willfully inflicted. Daum v. North Jersey St. Ry. Co We conclude, therefore, that it could not have been said, as a matter of law, at the close of the plaintiff's case, that there was no evidence upon which the negligence of the defendant company could have been predicated. Nor do we think, as the case then stood, that the trial judges would have been justified in taking it from the jury upon the ground that contributory negligence on the part of the plaintiff had been conclusively shown. Although he was bound to use reasonable care for his own safety, this did not require him to look continuously for the approach of a car. To have done this would have made it impossible for him to perform his work. He knew that he was in a place where he was safe, except when a car was passing. He knew, too, that it was the custom, when a car was approaching, for the motorman to ring his gong as a warning, and he had a right to expect that this warning would be given to him. Having looked, when he knelt down near the track, for the purpose of ascertaining whether a car was approaching, it was a question for the jury to determine whether it was negligent in him, under the existing circumstances, not to make another observation during the minute which elapsed before the accident occurred Harmer v. Reed Apartment, etc., Co. (N. J. Err. & App.) 53 Atl. 402. The second assignment of error is directed at the action of the trial court in overruling a question asked of one of the plaintiff's witnesses upon cross-examination. The witness, having stated that he himself had on one occasion been injured by one of the defendant company's trolley cars, was asked, "Did you present any claim to the company?" and, on objection being made, the question was overruled. It seems manifest that this question was immaterial. The contention is that it called for an answer which would have shown bias on the part of the witness, thereby affecting his credibility. But the mere fact that he did or did not present a claim to the company could not have had any such effect. If the witness had presented a claim, and his claim had been refused recognition, this fact might have tended to show bias; but the question asked did not call for the disclosure of any such fact. It was properly overruled. The defendant produced as a witness the motorman who was operating the car which ran over the plaintiff. He testified that, as the car approached the point where the accident happened, the plaintiff was facing him, and appeared to him to see the car. He was then asked by the defendant's counsel this question: "As you came along, do you know whether this man Daum [the plaintiff] saw you?" This question was overruled on the ground that the witness could not know whether the plaintiff saw him, and this ruling is the ground of the third assignment of error. The trial judge properly excluded this question. The witness had already testified that the plaintiff appeared to him to see the car, and 7 RR R-52 |