29 Minn. 336 | Minn. | 1882
Lead Opinion
Action to recover for 'injuries sustained by the plaintiff from being run over by a freight train of the defendant. At the time of the injury the plaintiff, who was then 18 months old, had wandered from his father’s house and upon the railway track unobserved by his father, in whose care the child then was. The defendant is charged with negligence, both in the operating of the train, and in not having fenced its track at the place of the accident. The defendant, denying its own negligence, alleges that the accident was caused by the negligence of the father of the plaintiff in suffering the child to be upon the track. The negligence of the father in the care of his child, as is claimed by the defendant, must be imputed to the latter, and, if found as a fact, bar a recovery. Upon the trial there was evidence tending to show both negligence on the part of the defendant in the management of the train, and on the part of the father of the plaintiff in the care of the child. No fence had been built along the line of road at the point where the child went on the track. This was on the opposite side of the track from the railway station-house and platform at Glyndon. The necessity, if any existed, for leaving that side of the road unfenced does not appear.
It appears that upon the trial of the case the attorneys for the respective parties agreed that the law imputed the negligence of a parent to the child, and that an infant, suing to recover for the negligence of another, would be barred of a recovery by any negligence of the parent contributing to bring about the injury complained of. The court in its charge instructed the jury fully that they were to accept and act upon this principle as applicable to this ease, but, in connection with its instructions in this regard, the court said to the jury in substance that there was ground for a difference of opinion upon this question; that courts differed upon it, and that perhaps the weight of authority and of reason was opposed to the proposition charged, and that he (the court) did not believe it to be the law; and that he thought that if he had cause to decide upon it, he should decide the other way; that he did not believe the negligence of the
The court was not required to accept the propositions of law agreed upon by counsel, nor to conduct the trial upon a theory of the law not entertained as correct by the court itself. On the contrary, it was the duty of the judge to apply and administer the law according to his own understanding of it. Assuming the doctrine of the imput-ability of the negligence of the parent to the child in this case to be legally correct, the court ought not to have added to its charge to that effect statements that the weight of reason and of authority were perhaps opposed to the rule indicated, and that, in the opinion of the court, the law was otherwise. See Town of Scott v. Town of Clayton, 54 Wis. 499, which fully sustains our opinion in this ease. In no case could there be assurance that the jury would follow and apply the rule by which they were thus instructed to be guided, rather than the opposite one, which was indicated by the court as being the true rule of lawr, in its opinion, and more consistent with reason and authority; and especially in a case like the present, which was of a character calculated in an unusual degree to move the sympathy of the jury in favor of the plaintiff, is it to be apprehended that the jury may have suffered themselves to entertain and apply, in favor of the infant plaintiff, as a rule of law, a principle sanctioned by the expressed opinion of the court itself, rather than one which, if the father should be deemed to have been negligent, would bar a recovery, and of which the court expressed its disapproval.
The question involved in this case, as to the contributory negligence of the parent or person standing in loco parentis barring a recovery by an infant for the negligence of another, is one upon which there is a decided conflict of authority. It has been so fully considered by both courts and commentators that there is little reason to further discuss it. The majority of the court adopt, as sounder in principle and more equitable in practice, the doctrine of those cases which hold that the consequences of negligence on the part of the
Upon the trial the court charged, in effect, that a breach by defendant of the statutory duty to fence the line of its road was negligence, which, if it contributed to cause the accident complained of, w'ould be such negligence as would give a right of recovery in this action. For the purpose of our consideration of this question, it may properly be assumed that the reasonable and proper use of the railroad at this point, and the circumstances, were such as did not render it impracticable to fence the road on the side opposite to the depot.
By the statute of 1876, (Laws 1876, c. 24, § 1,) all railroad companies were required, within six months after such enactment, to build good and sufficient cattle-guards at all wagon crossings, and good and substantial fences on each side of their roads. Section 2 of the same act provides that all railroad companies shall be liable for domestic animals killed or injured by the negligence of such companies, and that a failure to build and maintain such required cattle-guards and fences shall be deemed an act of negligence. By the terms of section 3, a neglect for a period named to pay the damages occasioned by such killing of or injury to domestic animals makes the railroad company liable to extra costs in case of a recovery by action. Section 4, as amended in 1877, (Laws 1877, c. 73; Gen. St. 1878, c. 34, § 57,) is as follows: “Any company or corporation operating a line of railroad in this state, and which company or cor
Order reversed, and a new trial ordered.
Concurrence Opinion
I concur with the foregoing opinion as to the first point discussed. As to the second point, I am of opinion that the duty to fence created by the statute is absolute; that the statute