92 Ark. 437 | Ark. | 1909
(after stating the facts.) The plaintiff was injured while attempting to cross the railroad track of the defendant at a public crossing. The care and diligence that is required of the ordinary traveler upon the highway at the intersection of .a railway is well settled in this State. It has been repeatedly held by this court that it is negligence for one who approaches a railroad crossing to fail to look and listen for the approach of trains, and only in exceptional cases is it proper to submit to the jury the question as to whether the failure to exercise such care is excusable. The general rule of law is that the failure to exercise that care and diligence is such negligence as will defeat a recovery for any injury that is the consequent result thereof. Railway Company v. Cullen, 54 Ark. 431; Little Rock & F. S. Ry. Co. v. Blewitt, 65 Ark. 235; St. Louis & S. F. Rd. Co. v. Crabtree, 69 Ark. 135; St. Louis, I. M. & S. Ry. Co. v. Hitt, 76 Ark. 225; Tiffin v. St. Louis, I. M. & S. Ry. Co., 78 Ark. 55; Scott v. St. Louis, I. M. & S. Ry. Co., 79 Ark. 138.
But this rule of law is applicable to adults and to those minors who have the full measure of discretion attributed to adults. It is ’ not a rule that is applicable to all minors, and is not applicable to those minors who have not the capacity or intelligence -to appreciate the dangers, or the discretion to guard against them. The standard for judging ifhe conduct of a minor is not the care and prudence that would be exercised by an adult, 'but only that of one of his age, intelligence and discretion; and it cannot be said as a matter of law that a minor is guilty of contributory negligence under circumstances that would declare an adult to be guilty of such negligence.
In the case of Washington & Georgetown R. Co. v. Gladmon, 82 U. S. 401, it is said that 'the rule of law in regard to negligence of an adult and the rule in regard to that of an infant is quite different. The adult must give that care and attention for his own protection that is ordinarily exercised by persons of intelligence and discretion. Of an infant less discretion is required, and the degree depends upon hiis age and knowledge. “The caution required is according to the maturity and capacity of the child, and this is to be determined in each case by the circumstances of that case.”
The Supreme Court of Georgia has well said: “But, conceding that average may serve as a standard in adults, it will not follow that a like standard should have recognition as to children. Could we assume an ideal constant as to the former, who that knows how precocious are some children and how backward are others would carry the assumption down to childhood and apply it*to children ? Capacity * * * is> the main thing. Age is of no significance except as a mark or sign of capacity. * * * The study of these and other like cases will lead to two conclusions: first, that no court can hold that childhood and manhood are bound to observe the same degree of diligence; secondly, that while the same ordinary care is frequently applied to the diligence exacted by law of a child, there is little propriety in so doing. Due care is always the better and more accurate description. * * * Due care on the part of this boy might fall far short of that of a prudent man.” Western & Atlantic Ry. Co. v. Young, 81 Ga. 397.
In the'case of St. Louis, I. M. & S. Ry. Co. v. Sparks, 81 Ark. 187, this court 'has said: “It has been frequently held that a child is not required to exercise the same capacity for self-preservation and the same prudence that an adult should exercise, under like circumstances.” In determining the question of contributory negligence the age and intelligence of the person charged therewith must be considered. A minor should be only held to exercise that care which one of his age, intelligence and ordinary prudence would exercise under the circumstances. In the case of a minor, therefore, it becomes a question of fact for the jury to determine, after taking into consideration his age, intelligence and capacity, whether or not, under the circumstances of the case, he was guilty of contributory negligence; and it cannot be said as a matter of law that the minor of tender years or of inferior intelligence or discretion is guilty of contributory negligence. St. Louis S. W. Ry. Co. v. Bolton, 36 Tex. Civ. App. 87; Robinson v. Metropolitan St. Ry. Co., 86 N. Y. Supp. 443; Byrne v. Railroad, 83 N. Y. 620; Dowd v. Chicopee, 116 Mass. 93; 3 Elliott on Railroads, § 1172.
The plaintiff in this case was a ¡boy 16 years old', and was of inferior intelligence. The testimony tended to show that he was not bright, and did not have good understanding. What would be ordinary care for such a boy t'o exercise might be culpable negligence in an adult. Under the circumstances of this case, it cannot therefore be said as a matter of law that he was guilty of contributory negligence. The court therefore erred in giving the instruction of its own motion declaring the plaintiff guilty of contributory negligence, and in refusing to give said instructions numbers, i, 2, 3 and 4 requested by the plaintiff. And instruction number 8 given at the request of the defendant should have been modified by adding thereto the following: “Provided the engineer after the discovery of the perilous position of the plaintiff exercised due and ordinary care in using all the means within his power to avoid the injury.”
We are also of the opinion that the court erred in instructing the jury that “the ringing of the bell and the sounding of the whistle are not in this case, and you will pay no attention to any argument about the blowing of the whistle or the ringing of the bell.” Under the ruling which we have made above, the question of contributory negligence on the part of plaintiff was under the circumstances of this case a question of fact for the jury to determine. And therefore it became also a question of fact for the jury to determine as to whether or not the defendant was guilty of any negligence by failing to ring the bell or blow the whistle before the actual perilous position of the plaintiff was discovered. But, in addition to this, after the perilous position of the plaintiff upon the track was discovered by the defendant, it then -became a question of fact for the jury to determine as to whether or not the failure to give warning signals was an act of negligence on the part of the defendant.
If the plaintiff was guilty of negligence in the manner in which he approached and went on the track, still the defendant was bound to use ordinary care to avert the injury after the peril of plaintiff was discovered. “The failure to use ordinary care -to avoid injuring the plaintiff after his perilous situation has been discovered renders immaterial the inquiry as to the contributory negligence of the plaintiff in exposing himself to injury.” St. Louis S. W. Ry. Co. v. Thompson, 89 Ark. 496.
In St. Louis, I. M. & S. Ry. Co. v. Evans, 74 Ark. 407, it is said: “The contributory negligence of a party is no defense where the direct cause of the injury complained of is the omission of the defendant to use a proper degree of care to avoid the consequences thereof.” In that case it is said: “Appellant is not liable in this case because its servants did not stop the train, or because they ran the locomotive at an unusually high rate of speed; but it is liable because of the fact that, under those circumstances, seeing the deceased on the track ahead of the swiftly approaching train and giving no evidence that he was aware of its approach, they negligently failed to give him any warnings of the peril.”
In 2 Thompson on Negligence, § 1741, it is said: “The most obvious suggestion of prudence and social duty requires that the engineer who is driving the train shall give warning signals to a trespasser whom he sees on the track in front of the train, with his back to it, in sufficient time to enable him, after hearing the signals¿ to quit the track in safety.” Evans v. St. Louis, I. M. & S. Ry. Co., 87 Ark. 628.
In the case at bar the testimony tended to prove that when the plaintiff drove upon the track and his perilous situation was discovered by t'he fireman the train was 100 feet distant from him. The fireman saw that the plaintiff’s back was towards the train, and that he was looking and had been looking away from the train, and had not seen the train; and the plaintiff’s conduct and appearance gave evidence that he was wholly unaware of the train’s approach. From the evidence the jury could have found that the train was then at such a distance that he might have quit the track in safety if he had been warned of the approach of the train. It then became a question for the jury to determine as to whether or not the defendant’s servants were guilty of negligence in failing to give the warning signals.
For the errors above indicated, the judgment is reversed, and this cause is remanded for a new trial.