| Me. | Jul 1, 1870
It is admitted that the defendant corporation had legally located its railroad across the Kenduskeag stream, and that the bridge over which the plaintiff was passing was constructed over said stream in accordance with the requirements of the statutes of this State.
To entitle the plaintiff to recover, he must show that the injury was occasioned by the omissions of duty, or the commission of wrongful acts on the part of the defendant, and not through his own neglect and want of ordinary and common care. The negligence of the defendant is the gist of the action, but the absence of negligence contributing to the injury, on the part of the plaintiff, is equally important.
While the plaintiff is bound to be in the exercise of ordinary care and prudence, less care and prudence will be required of a child than of a person of mature age. The care and prudence to be expected from a child will obviously have relation to his ago and intellectual capacity. The plaintiff, though held to show the injury
If a child is of too tender an age to be permitted to go in the streets without the attendance and supervision of those having him in charge, their negligence and want of due care will have the same effect in preventing the maintenance of an action for an injury occasioned by the neglect of another as would the plaintiff’s want of care, if he were an adult. Holly v. Boston Gas Light Co., 8 Gray, 123; Wright v. Malden & Melrose R. R. Co., 4 Allen, 283; Callahan v. Bean, 9 Allen, 401. In these cases the parties injured were much younger than this plaintiff.
The plaintiff was nine years old. If of age to be permitted to go in the streets without parental or other supervision, he must be held responsible for a degree of care and prudence proportionate to his age. He was passing the railroad bridge. The draw had been opened. When he reached there, it was closing. The defendants were in the exercise of their indisputable right to open and close. The plaintiff saw that every second rendered his passage less dangerous, and that'if he would but wait, it would be accomplished without risk, or even the possibility of danger. The defendants ■v£ei^Jun_no_respect negligent. They were making~as rapidly' as they could the passage each moment the safer, and were not bound to anticipate the folly or the rashness of others. If they had stopped the motion of the draw, the danger of the plaintiff, if he attempted to leap, would have been increased. The defendants were not required by the statute to have a flag or a flag-man stationed at the draw to give “notice. If they had done so, neither the flag nor the flag-man could have given him greater information or clearer warning than his own vision gave him. It was in the daytime. And notice was unnecessary when all was known without notice. His companions leaped upon the approaching draw. He followed, and, failing in his attempt, was caught in the draw*and injured. While the grave injury the plaintiff received may be regretted, no reason
The facts in this case are undisputed. There has been no evidence offered on the part of the defense. The negligence or rashness of the plaintiff is shown by his own evidence to be the cause of his injury. No neglect of the defendants is proved. When the facts are not controverted, a nonsuit may properly be granted, if a verdict in favor of the plaintiff, upon the proofs offered by him, would be set aside as against evidence. It would be absurd to send a cause to a jury when the verdict, if rendered in favor of the plaintiff, would not be permitted to stand. It is no interference with the province of the jury to give judgment upon the legal effect of admitted facts. When the plaintiff’s evidence fails to show any cause of action, a nonsuit should be ordered. Wright v. Malden & Melrose R. R. Co., 4 Allen, 283; Todd v. Old Colony & Fall River R. R., 7 Allen, 207; Steves v. Oswego & Syracuse R. R. Co., 18 N.Y. 422" court="NY" date_filed="1858-12-05" href="https://app.midpage.ai/document/steves-v--oswego-and-syracuse-railroad-company-3630637?utm_source=webapp" opinion_id="3630637">18 N. Y. 422; Morton v. Frankfort, 55 Maine, 46; Cooper v. Waldron, 50 Maine, 80. Plaintiff nonsuit.