[216]. The statement has been abridged and the arguments and part of the opinion are omitted.
[217]. See also Weitzman v. Nassau R. Co., 33 App. Div. 585; Green v. Metropolitan R. Co., 42 App. Div. 160.
[218]. Statement abridged.
[219]. In Kierzenkowski v. Philadelphia Traction Co., 184 Pa. St. 459, the plaintiff was a girl three years old, who had been knocked down by one of defendant’s horse cars. The court (inter alia) instructed the jury, in substance, as follows:—
The law does not allow that children of this age can be guilty of contributory negligence; but you are obliged to consider the case as to the negligence alone of the defendant. If you were driving along the street with your horse and wagon, and a child runs under the feet of the horses and is killed, you are not responsible; not because the child is guilty of contributory negligence, but because you are not guilty of negligence. If it is an unavoidable accident, you are not responsible. If the jury believe from the evidence in this case that the child suddenly and unexpectedly appeared in the vicinity of the track under such circumstances that the driver of the car could not have discovered its presence in time to avoid the accident, the verdict must be for the defendant.
An exception to the charge was overruled.
[220]. Birmingham R. Co. v. Brantley, 141 Ala. 614; Baltimore Traction Co. v. Wallace, 77 Md. 435; Lassiter v. Raleigh R. Co., 133 N. C. 244; Memphis R. Co. v. Haynes, 112 Tenn. 712 Accord.
“Let us view this subject in a more concrete form. The last railroad statistics I have been able to find were issued by the Interstate Commerce Commission for the year 1906.
[The learned judge then copies a table from the report referred to and proceeds.]
It will be observed that while the road mileage and train mileage in Canada are each ten per cent of the entire road system and the entire train mileage, the number of trespassers injured or killed in that country was only three per cent of the total number; while in this State the road mileage is twenty-six per cent of the total road mileage and the train mileage twenty-five per cent of the total train mileage, forty-eight per cent of the total number of trespassers injured or killed were injured or killed in Missouri.