26 Ind. App. 258 | Ind. Ct. App. | 1900
Appellee sued appellant to recover damages for the alleged negligent killing of his infant child. The complaint was in a single paragraph, to which a demurrer,
The complaint avers that appellee wás the natural father of the deceased child, and that as such he would have been entitled to all her earnings from the time of her death to the time of her majority had she lived, 'subject to her proper care, maintenance, and support. That appellant owned and operated a street railway in the city of Elwood and ran its cars over and upon East Main street in said city; that on the 16th of October, 1896, his said infant daughter Euth was four years, nine months and twenty-one days old, and lived with her grandparents at number 2414 East Main street in said city, with whom she had lived from her birth; that about 4 o’clock in the afternoon of said day said child was lawfully upon said street within 100 feet of her home, in plain view and calling distance of her grandmother, and was in the act of crossing said street with a playmate of her own age; that said East Main street both east and west of said house is perfectly straight for a distance of over one-half mile in both directions, so that any one on said street opposite said house can be seen for a long distance; that said child was in the act of crossing said street near her home, and that the appellant in disregard of her rights was running and operating a defectively constructed car along, and over its said track on said street, going from the east toward the west; that said car was so negligently and defectively constructed that it was not equipped with any fender or other appliance to prevent a person who might be struck by said car from being thrown beneath the wheels thereof and run over, and that said car was so carelessly
The first objection made to the complaint is that it does not aver that appellee had the care, control, and custody of the child, or was in any manner entitled to her services and earnings. The complaint avers that at the time of the accident resulting in the death of the child she was living with her grandparents. Such allegation does not necessarily mean that appellee did not have the care and control of her. An infant child may live with some one other than its father, and yet be under his control. The father is-the natural guardian of his infant child, and is charged with its care and maintenance, and unless emancipated is entitled to its earnings. The failure specifically to charge in the complaint that the child was under the care, custody, and control of appellee does not make it bad. The suggestion that the complaint is bad because it does not aver that appellee was entitled to the services and earnings of the child does not seem to be well grounded. The complaint does aver that appellee would have been entitled to her services had she lived. As the law gives to the father the
The next objection urged to the complaint is that it fails to show actionable. negligence on the part of appellant. This objection is well taken if no actionable negligence is charged, for this is the foundation of appellee’s right, of action. If the complaint charges negligence it rests upon two propositions: (1) An improperly constructed car, in that it was not fitted with a fender; (2) the child was in full view of the servant in charge of the car, and, considering her tender years, he ran the car at a high rate of speed, and did not check its speed when he saw her possible danger in time to avert the accident. The rate of speed at which the car was running was not in itself negligence. A street railway company, in the discharge of its duties to the traveling public, is required to run its cars at regular intervals and on time, and there are no allegations in the complaint from which we can say that the speed of the car was in itself negligence. See Rack v. Chicago, etc., R. Co., 173 Ill. 289, 50 N. E. 668.
Passing the question as to whether it was negligence in failing to have a fender on the front end of the car while it was being run, we will consider the question of running the car in full view of the child by the servant in charge of the $ar at a high rate of speed, without checking its speed, etc. The discussion of this question involves the consideration of whether or not the child was sui juris, or non swi juris. The complaint is unquestionably bad for a failure to allege that the accident occurred without the fault or negligence of the child, unless we can say from the whole complaint that it was of such tender years that it could not be chargeable with discretion and care. The rule respecting contributory negligence presupposes sufficient intelligence to know the existence of danger. Walters v. Chicago, etc., R. Co., 41 Iowa 71. The law does not fix or designate
Tip to a certain age, the precise limit of which can not well he defined, a child is incapable of contributory negligence, and the court may so declare as a matter of law. Children ranging in age from eighteen months to six years, and even under seven, have been declared as a matter of law of being incapable of such negligence. Chicago City R. Co. v. Wilcox, 138 Ill. 370, 27 N. E. 899; Walters v. Chicago City R. Co., supra; Ray v. Pennsylvania R. Co., 65 Pa. St. 269; Schmidt v. Milwaukee, etc., R. Co., 23 Wis. 186; Chicago, etc., R. Co. v. Ryan, 131 Ill. 474, 23 N. E. 385; Norfolk, etc., R. Co. v. Ormsby, 27 Gratt. (Va.) 455; Keyser v. Chicago, etc., R. Co., 56 Mich. 559, 23 N. W. 311; Mangam v. Brooklyn R. Co., 38 N. Y. 455; Erie, etc., R. Co. v. Schuster, 113 Pa. St. 412, 6 Atl. 269; Chicago, etc., R. Co. v. Gregory, 58 Ill. 226; Westerfield v. Levis, 43 La. Ann. 63, 9 South. 52; Buck v. People’s, etc., Co., 46 Mo. App. 555; Tobin v. Missouri, Pac. R. Co. (Mo.), 18 S. W. 996; Jeffersonville, etc., R. Co. v. Bowen, 49 Ind. 154; Evansville, etc., R. Co. v. Wolf, 59 Ind. 89; Pittsburgh, etc., R. Co. v. Vining, 27 Ind. 513; Indianapolis, etc., R. Co. v. Pitzer, 109 Ind. 179; Terre Haute, etc., R. Co. v. Tappenbeck, 9 Ind. App. 422.
It is now the settled law that a child is held, so far as he is personally concerned, only to the exercise of such care and
In Terre Haute, etc., R. Co. v. Tappenbeck, supra, it was said: “The distinction between infants who are presumed to be non sui jttris and those who are presumed to be sui juris grows out of the question of capacity. In those cases where, by reason of the tender years of the child, the courts can say, as a matter of law, that the injured child was non sui juris, it is not necessary in an action by the parent to either aver or prove that the child was without fault,” etc.
In the case of Citizens St. R. Co. v. Stoddard, 10 Ind. App. 278, this court held that a child five years of age is non sui juris and incapable of contributory negligence.
Prom the averments of the complaint as to the age of the child, and the authorities we have cited, we are led to the conclusion that it was non sui juris, and hence it was not necessary to aver that it was without fault or negligence. This conclusion makes plain the duty of a street railway company in running its cars on streets where such children have a right, and where they are likely to be. In this case the complaint does not disclose any facts or circumstances indicating that this street was a dangerous place, unless such inference necessarily arises from the fact that street cars propelled by electricity were run upon the track. The character and extent of travel on the street is not shown; nor does it appear how often cars passed over the track at the point where the accident occurred.
The complaint avers that the deceased child was crossing the street in full view of the appellant’s servant in charge of the car. In this connection we are reminded of the rule stated in the case of City of Indianapolis v. Emmelman, 108 Ind. 530, as follows: “Streets are open to persons of all ages, and children are and must be permitted to some
Elliott on Roads and Streets, p. 590, says: “It is the duty of a street railway company to run its cars with a due regard to the rights of infirm persons, aged persons and children of tender years, for all classes of citizens have a right to freely use the public streets, and as this is the duty of the company, it is liable if it does not use due care to prevent injury to the various classes of persons that may lawfully use the streets.” See, also, Muncie St. R. Co. v. Maynard, 5 Ind. App. 372.
It was the duty of appellant to take notice of the fact that children were likely to be on the street, and it was required to use greater care to avoid injury to them than with older persons who had reached the age of discretion. Citizens St. R. Co. v. Stoddard, 10 Ind. App. 278. See, also, Penso v. McCormick, 125 Ind. 116, 9 L. R. A. 313, 21 Am. St. 211.
It would be a harsh and unreasonable rule to hold that, because there was danger arising from operating a street railway line, children of such tender years as to he incapable of discerning the danger incident thereto should he debarred from the use of streets under any and all circumstances. Here, then, we have a child incapable of contributing to her own injury, and a street railway charged with the highest degree of care in operating its cars as respects such child. The complaint shows a straight track, with the child in plain view of the servant in charge of the car. While there is no specific charge that he saw the child, it was his duty to see it, and use all reasonable means to avoid injuring it.
In Senn v. Southern R. Co., 108 Mo. 142, 18 S. W. 1007, it was held that reasonable care requires a driver to keep a vigilant watch for all vehicles and persons on foot, especially children, either on the track or moving towards it, and on the first appearance of danger to such persons to
In this case, as in Citizens St. R. Co. v. Stoddard, 10 Ind. App. 278, the grandmother was not required to anticipate that appellant would negligently and carelessly run over the child, which she had permitted to go across the street with its playmate. The child, as we have seen, had the right to cross the street, and, as was said by Judge Black in Noblesville Gas, etc., Co. v. Teter, 1 Ind. App. 322: “One need not relinquish his valuable legal right in anticipation of an unlawful violation of it.” In this connection, we must not lose sight of the rule of law that, where a person is aware of danger to another in time to avoid the impending injury by reasonable diligence, the want of such diligence on his part will amount to actionable negligence, if such negligence is the proximate cause of such injury. Under such circumstances it is the highest duty of the person who is likely to cause the injury to use all reasonable diligence to avoid it. In the case of Lake Erie, etc., R. Co. v. Juday, 19 Ind. App. 436, this rule of law was involved, and in the discussion it was said: “It has been held that though a person may have subjected himself to injury by his own negligence, yet he may recover for such injury if the person inflicting it could have avoided it after discovering his danger, or if he failed to use ordinary care.” We cite that case with the authorities there collected. This rule applies with greater force where the party in danger is incapable by reason of age, or otherwise, from discerning such impending danger. Considering the age of the child, as in this case, appellant’s servant had no right to assume,
In the case of Galveston, City R. Co. v. Hewitt, 67 Tex. 473, 3 S. W. 708, it was said: “If a person he seen on the track of either class of railway, it may be assumed, if the person be an adult, that he will leave the track before the train or car reaches him, and this presumption may be indulged so long as danger does not become imminent, but no longer. Erom the time that danger is seen to be imminent, it becomes the duty of such railway company to use the highest degree of care to arrest it, and a failure to do so will constitute culpable negligence, which may or may not fix liability, as that question may be affected by the contributory negligence of the injured person. Mo such presumption, however, can be indulged as to the prudent conduct of an infant of no greater age than was the plaintiff at the time he is alleged to have been injured.” In that case the party injured was less than four years of age.
In the case of Artusy v. Missouri, etc., R. Co., 73 Tex. 191, 11 S. W. 177, the court said: “The fact of infancy gives warning to those in charge of a train of want of capacity and ability of the child to take care of itself, and the law therefore imposes the duty of exercising a degree of care proportionate to the helplessness of the child, who ought not to be presumed to know when to leave a track for its own safety, or to be presumed to be able to do so with that facility and promptness that an adult could and may ordinarily be trusted to do when his safety depends on his act.”
The complaint having averred that the child was in full view of the appellant’s servant who was in charge of the car, and it being his duty to see any person or object on the track in front of the approaching car, or approaching the track, we must assrmie that he saw the child in time to have stopped the car before coming into contact with it.
The next question to which our attention is called in argument is the overruling of appellant’s motion for judgment on the answers to interrogatories. The interrogatories show that the deceased child prior and up to the time of its death was in the care and custody of its grandparents; that its mother was dead; that its father lived in Indianapolis, and its grandparents in Elwood; that appellee did not contribute to its support; that it lived with and was cared for by its grandparents, with the consent of the appellee ; that appellee had not abandoned his child, and that the grandparents had not accepted the burden of maintaining it. It is further found that Main street where the grandparents lived was thinly populated; that the child was killed about half way between two public street crossings; that just prior to the time the child was killed it was given permission by its grandparents to cross the street to a neighbors to play with one of its playmates; that the car that struck the child was running about eight or ten miles per hour; that said child did not run immediately in front of the car as it was approaching toward the child; that the motorman was standing at his usual and proper place of duty; that said car was not being operated in a careful and prudent manner; that the motorman had knowledge that the child was about to cross the track; that after receiving such knowledge he had plenty of time to stop the car before coming in contact with her; that the motorman did not use all means within his power to stop the car before it struck her; that he could have stopped the car in time to have avoided striking her. These are all the facts elicited by the interrogatories that are pertinent to the question under consideration. Counsel for appellant have not advanced any
The only remaining question for decision is the overruling of appellant’s motion for a new trial. This motion is based on sixty-one reasons. The third to the thirty-sixth reasons, inclusive, allege error in admitting and refusing to admit certain evidence. We can not discuss seriatim all the questions thus raised. We have discharged our whole duty by a careful examination of all these questions which counsel have discussed, and after such examination we have reached the conclusion that the record as to this subject does not present any error properly saved, for which the judgment ought to be reversed. We are unable, after looking at the whole record, to find where the admission or rejection of any of the evidence saved and presented by the motion for a new trial was prejudicial to the appellant.
The first reason assigned for a new trial is that the verdict is contrary to law, and the second that the verdict is not sustained by sufficient evidence. These two reasons may properly be considered together, as they depend on the evidence. Counsel for appellant argue at great length that the evidence is wholly insufficient to support the verdict. There is evidence in the record from which the jury were authorized to find that the deceased child was seen by the motorman approaching the street car track on her way from
Another reason urged why the verdict is not sustained by sufficient evidence is, that the evidence shows that appellee emancipated his child, and therefore he was not entitled to recover for its death. Upon this point the evidence shows that the child’s mother died from the effects of the birth of the child, seven days after it was bom. At that time appellee lived with his wife and other -members of his family in Indianapolis. The grandmother testified that before the
In Citizens St. R. Co. v. Cooper, 22 Ind. App. 459, 72 Am. St. 319, it was held that human beings are not subjects of gifts, as chattels personal, and that neither a natural father nor mother could give their child to another. We still adhere to the holding in that case. In the case before us, it is evident, under the law and the facts, that appellee was the only person who could maintain an action for the death of his child. There is evidence to support the verdict, and we can not therefore disturb the judgment on the evidence.
Judgment affirmed.