Mr. Justice Trunkey
delivered the opinion of the court March 29th 1880.
The defendant’s fifth point was, “ that the plaintiff being about to drive a team, with two mules and a horse on the lead, across a railroad track, with a loaded wagon, where trains were running propelled by steam, having placed his son, seven years of age, on the lead horse over which he, the father, had no control, was guilty of negligence in placing his son in such a dangerous position, and cannot recover for the loss of his son or his horse killed by the passing train.” Ans.: “This point assumes a fact, the existence or non existence of which is a question for your consideration, to wit, whether the plaintiff placed his son on a horse over which he had no control. This is for you, and we cannot assume it. If it were true it would be strong evidence of negligence. It is for you to find under all the evidence in the cause whether there was negligence of the plaintiff or his son who was killed, which con tributed to the production of the accident. If there was such contributing negligence, the plaintiff cannot recover.”
The point must be considered with reference to the facts which the testimony would have warranted the jury in finding. Prom that they could have found that the train was running through the borough at the rate of twenty miles an hour, and no boll was rung nor whistle blown till after the accident; that the deceased was a remarkably stout and intelligent hoy for his age, and was in the habit of vrorking with his father ; that he had often ridden the lead horse in the team, had, on the day he was killed, taken the horse by a way under the railroad to the place of loading, and geared him to the wagon while his father put on the load; that he got on the horse, and the team was driven near to the railroad and stopped ; that the plaintiff went upon the track, looked both ways, listened, and neither seeing nor hearing an approaching train, started back, telling the hoy to come ahead; that the team was started before the plaintiff reached it, he took the mule by the head, the horse got his forefeet on the track, and was struck within three seconds from the time a witness, who was standing by, saw the cars; that as soon as said witness heard the train he hallooed, the plaintiff hallooed, but the train was too fast — not a witness saw anything that could have been done to save the horse or boy, between the time of hearing the train and the accident. It cannot he pretended that any evidence shows the horse could have been got out of the way had a man sat in the place of the boy, or if the plaintiff had had a line on the horse.
The assumption in the point forbade its affirmance. It was earnestly argued that the testimony authorized the co.urt to assume the fact. Perhaps, in all the farming and mining portions of the state, there is not a judge or juror who would say a man could have no control of the lead horse unless he has a line on him. Be this as it may, it is not a question of law for the court to say. Where there is no line there is no control. The point could have been well refused without qualifying remark, and had it been there would have been no cause for complaint. Its assumed facts are but a fraction of the story, and the part omitted shows the plaintiff’s care before his attempt to cross the track, and that he was caught too suddenly for escape. In the light of the evidence, the court could not say the plaintiff was negligent, unless it is negligence in itself for a teamster to cross a railway track with his little son riding the lead horse — a proposition which has not been advanced. Excepting one remark, the instructions to the jury were accurate, adequate and applicable to the proofs, enabling them to intelligently dispose of the questions submitted. That remark was in the answer to the fifth point, the court saying, if the assumed facts were true it would be strong evidence of negligence. As an abstraction, we think that was error; for, on the verity of the facts as assumed, without reference to the other proofs, the plaintiff was guilty of negligence. Had the point been differently framed, submitting its isolated facts to the jury, it should have been affirmed; but the court would have reminded them, as it did, that they were to consider all the facts established by the testimony.
Unless it be certain that the error did the defendant no harm, the judgment must be reversed and the cause sent back for another trial. This is doubtful. The jury judge of the credibility of witnesses, and possibly they may have found the facts as contended for by the defendant; and, if so, the error was hurtful.
The opinion of the learned judge of the Common Pleas, on the motion in arrest of judgment, comprises all that need be said respecting the fourth and fifth assignments.
Judgment reversed, and venire facias de novo awarded.