62 P. 996 | Kan. | 1900
The opinion of the court was delivered by
The testimony introduced by the plaintiffs below showed that the deceased, up to the time he stepped on the track, was walking in a place of safety between what is called the main line and the track next to it. He was familiar with the location, and had traveled over the ground adjacent to these railroad-tracks many times. He knew that the employees of the railway company were engaged in switching freight-cars, and just before his death he had passed the very train which struck him, a short distance west of the place where he was killed. This train, consisting of an engine and six or seven cars, was moving about, with nothing to prevent its being seen by a person walking through the yard. Had the plaintiffs’ son taken the slightest precaution, by looking or listening, to ascertain whether the train which he had passed a few minutes before was backing up, he would have escaped the injuries which resulted in his death. He was in a place of safety up to the time of his suddenly stepping in front of the approaching cars. It appeared in the testimony that no warnings could have availed to prevent the injury after the boy stepped on the track.
In Railroad Co. v. Holland, 60 Kan. 209, 56 Pac. 6, it was said:
*301 “A person who sees a railroad-track upon which trains may pass at any time is already warned of danger, and it is the imperative duty of one about to cross the tracks of a railroad at least to look and listen for approaching trains. If he fails to look, when by
A person, infant or not, is required to exercise only such capacity as he possesses. The caution required of an infant is measured by his maturity and capacity, and this is to be determined in each case by the circumstances of that case. (Railroad Company v. Gladmon, 15 Wall. 401, 21 L. Ed. 114.) Age is of no significance except as a mark of capacity. (The Western and Atlantic Railroad Co. v. Young, 81 Ga. 397, 7 S. E. 912; s. c., 12 Am. St. Rep. 820; Thompson v. B. R. Co., 145 N. Y. 196, 39 N. E. 709.) In this state a minor at fifteen years of age may enter into a contract of marriage. (Gen. Stat. 1897, ch. 100, § 242 ; Gen. Stat. 1899, §2168.) At the same age he may choose his own guardian. Both acts involve the ex
In the case of Merryman v. C. R. I. & P. Ry. Co., 85 Iowa, 634, 638, 52 N.W. 546, a boy thirteen years and one month of age was injured while jumping on a turn-table, which had been set in motion by other boys. In an action to recover for the injury, the plaintiff admitted that he knew the distance between the ends of the table and the embankment; that if his leg was caught between them it would be crushed ; that if he had thought of the danger he would have avoided it, but that he did not think of it because he was having fun. The court said:
“There are numerous cases which hold that the question of negligence on the part of minors is for the jury to determine, and such is the rule where the ability of the minor to comprehend the result of his acts and the danger to which they will expose him is controverted. But this case involves no question of that kind. A little attention to his surroundings would have shown the plaintiff his danger. He fully understood what would happen to his leg' if caught*304 between the table and the embankment, and some care on his^ part would have been sufficient to avoid all danger. The fact that his attention was diverted by the play in which he was engaged did not excuse his failure to exercise at least the slight degree of care which was needed for his protection. The conclusion is irresistible that the proximate cause of the accident was a want of that attention and care on his part which his knowledge and judgment required him' to exercise.”
Under the circumstances of this case, it would have been an evasion of responsibility for the court to submit to the jury the question whether the minor was of sufficient age and intelligence to comprehend the results of his own negligence. A man of twenty-one, possessing no more knowledge of the world, no better educated and no more active mentally or physically would have been charged, as a matter of law, with the consequences of such rashness or want of care ; and no certain time of life, after the irresponsible age of tender childhood has passed, should be arbitrarily fixed to determine the limits of discretion or accountability for acts done or duties neglected. The legislative declaration that the period of minority extends in males to the age of twenty-one years was obviously not intended to make that age when reached a time when the rules of evidence become changed, or their force impaired with respect to the conduct of persons charged with contributory negligence who have lived a shorter time. It could be urged with much force that the statute which permits a male infant of the age of fifteen years to enter into and carry out a contract of marriage implies the possession of a high degree of discretion and judgment, and a manhood adequate to the responsibilities assumed. If the deceased in this case had been married, which he might lawfully have
Nor can it be said that the fixing by statute of a year when majority is reached must be held decisive in all cases of the time when a person has arrived at a period of accountability for his negligent acts. Irrespective of laws which remove the minor’s political disability at one age, and confer a right to marry at another, courts must look at the capacity, natural and acquired, of him whose conduct is under scrutiny, and if it clearly appears from the evidence that the child had a capacity for self-protection which it culpably omitted to use in face of a danger which it knew and sufficiently appreciated, then no question is left for the jury to pass on concerning the contributory negligence of the person charged with it. The court ought not to be required to release its grasp on the facts presented to a jury, nor be hampered in applying its intelligence to their probative force, in a case where it manifestly appears that negligence contributing to an injury which is the subject of the action proceeds from a’ person, though under age, who has ample capabilities to make him apprehensive of threatened harm and who, at the same time, is possessed with sufficient physical strength to avoid it. See Wallace v. New York &c. Railroad, 165 Mass. 236, 42 N. E. 1125; Cleveland C. C. & St. L. Ry. Co. v. Tartt, 12 C. C. A. 625, 64 Fed. 830; Felton v. Aubrey, 43 U. S. App. 278, 20 C. C. A. 436, 74 Fed. 350.
The case of Biggs v. Wire Co., 60 Kan. 217, 56 Pac. 4, 44 L. R. A. 655, is cited by counsel for plaintiffs in error as decisive of the question before us. While the general language used in the syllabus of that case
The judgment of the district court will be affirmed.