The opinion of the court was delivered, by
Sharswood, J.
— The only question raised by these assignments of error, which, it is deemed necessary to discuss is, whether under the evidence, the plaintiffs below — the parents of the child who was run over and killed by the railroad ear of the defendants— were guilty of culpable negligence in permitting him to run abroad in the street without a competent protector. It was undoubtedly settled very properly in Glassey v. Hestonville Passenger Railway Co., 7 P. F. Smith 172, that if the parents permit a child of tender years to run at large without a protector in a city traversed constantly by cars and other vehicles, they fail in the performance of their duties, and are guilty of such negligence as precludes them from a recovery of damages for any injury resulting therefrom. If the case is barely such, the negligence is á conclusion of law, and ought not to be submitted to the determination of the jury. But in this case there was evidence that the child was not per mifcted to run at large without a protector, and it was a question for the jury whether the accident was to be attributed to the negligence of the parents. These parents were careful parents. A board at the door prevented the child from leaving the house of his own accord. When abroad he was in charge of an older sister between twelve and thirteen years of age. It so happened, however, that the board was removed temporarily for the purpose of scrubbing the floor. The child watched his opportunity and escaped. He was immediately missed and his brother at once sent after him. He returned and said that he was playing in the alley with Lizzie Orr, a little girl of the neighborhood, between seven and eight years old, who was in the habit of playing with him. The parents were satisfied that he was safe with her. In the caprice of childhood the little boy ran away from her — down the alley to Rebecca street where the railway was — ran across the track, and in the course of a very few minutes uras run over. Now, whether Lizzie Orr was a competent protector, whether the parents ought to have been satisfied when informed that he was Avith her, were questions for the jury. Children of that age — more especially girls — are often sufficiently prudent and thoughtful to be intrusted Avith the care of young children. Persons in the condition of life of these parents cannot afford to employ servants to look after their children. Their necessary domestic duties prevent them from being constantly on the Avatch themselves. We agree that “to say it is negligence to permit a child to go out and play without it is accompanied by a grown attendant, would be to hold that free air and exercise should only be enjoyed by the wealthy, who are able to employ such attendance, and would, amount to a denial of these blessings to the poor:” O’Flaherty v. Union R. R. Co., 5 Am. Law Times 42. Mr. Justice Agnew has made a similar observation in Kay v. The Pennsylvania Railroad Co., 15 P. F. Smith 277: “Here a mother, toiling for daily bread arid having done the best she could, in the midst of her necessary employment, loses sight of her child for an instant, and it strays upon the track. With no means to provide a servant for her child, Avhy should the necessities of her position in life attach to the child and cover it with blame?” That indeed was an action by the child, in Avhich the negligence of the parent Avould perhaps be no defence; but we may ask Avith equal propriety, why should the necessities of the parents’ position cover them with blame if they have done all in their circumstances they could do ?
Judgment affirmed.