95 P. 8 | Mont. | 1908
delivered the opinion of the court.
Bernard Harrington was about five years and. eight months old on July 5, 1906, when he was injured by being run down by cars operated by the defendant railway company over its tracks in the northern part of the city of Butte. This action is brought by the father of the child for damages by way of compensation for the loss of the child’s services from the time of the injury until he should have reached the age of twenty-one years. The injury occurred at a point where a roadway of general travel crosses the defendant railway company’s tracks; as to whether it is a public street is left somewhat in doubt. The complaint is drawn upon the theory that the injury was occasioned by the negligence of the defendant company. The answer denies any negligence, and pleads contributory negligence on the part of the child, and also contributory negligence on the part of this plaintiff in permitting the child to be in a place of danger unattended. The case was
The appellant’s specifications of error relate to the insufficiency of the evidence to sustain the verdict, and to instructions given, modified and refused. Respondent objects to any consideration of the questions arising upon the instructions, for the reason that the instructions are not presented to this court in the judgment-roll; but the application of the rule heretofore announced is of little or no consequence in this particular case, since the principal contention made by the appellant is presented under its specification of the insufficiency of the evidence to justify the verdict.
Appellant contends that the injury was the result of unavoidable accident; and while there is some testimony to the effect that the child ran upon the track and in front of the moving cars so soon before his injury as to render the injury unavoidable, there is likewise testimony that the child stood upon the track for from two to four or five minutes before he was: struck. This conflict in the evidence was properly submitted to the jury for consideration, and with the finding thereon in plaintiff’s favor we cannot interfere.
Appellant’s other contention upon the evidence presents a most difficult question. We think the evidence is ample, if believed, to show the negligence of the defendant railway company. The injury is admitted in the pleadings. In making-out plaintiff’s case it was made to appear that this child of tender years, non sui juris, was in a known place of danger, unattended by anyone whose duty it was to care for him. In this jurisdiction the rule is firmly established that in an action of this character the burden of alleging and proving contributory-negligence is upon the defendant in the first instance^ and this must be correct, since there is a presumption of law that the plaintiff exercised ordinary care. (Subd. 4, sec. 3266, :Code Civ. Proc.) In Nelson v. City of Helena, 16 Mont. 21,
On the part of plaintiff it is alleged that this crossing was a dangerous place, and that, by reason of his tender years, the Injured child was incapable of understanding or appreciating the danger. In view of these allegations appellant contends that the unexplained presence of this five year old child in a known place of danger, unattended by anyone whose duty it was to care for him, was of itself prima facie evidence of contributory negligence on the part of his parents.
It may be said to be a general rule, of universal application, that parents have no right to expect others to care for their children who are so young and immature that they cannot care for themselves, and that they (the parents) owe the duty to care for such children, and in caring for them are bound to exercise such degree of care and prudence to promote their safety as under all the circumstances is reasonable, and this degree of care .is proportionate to the age and intelligence of such children and to the known dangers, or dangers which might be known by the exercise of due care (1 Thompson’s Commentaries on the Law of Negligence, see. 321); and in
Broadly speaking, negligence may be said to be a breach- of duty. Primarily, and in a general way, the parents of a child of tender years owe the duty to protect such child from harm by keeping it out of danger. This duty is owed to the child for the child’s sake, and it is likewise owed to the community in general in order that ordinary business pursuits may be carried on; for, if railroad tracks are to be made common playgrounds for irresponsible children, it does not require much foresight to see that but one result will inevitably follow, viz., the suspension of the railway business. Since the father of this child, who is the plaintiff in this action, owed the duty to-exercise ordinary care to keep the child out of danger, a breach of that duty was negligence on his part; and the fact that he-
Up to this point we have considered the child’s presence in-the known place of danger as entirely unexplained, and in this-assumption we think we are correct. Counsel for respondent do not even suggest that any explanation can be found in the evidence, but rest upon the theory that the burden was upon the defendant to make an explanation which would show negligence, if any, on the part of the plaintiff. However, this much does appear from the record. The mother testified that: “At the time the boy was injured I thought he was in the yard at home. He was in the yard a little while before. I certainly always exercised care in looking after and seeing where he was. I always kept him right around because I was afraid of the track, and not only him, but the rest of them.” The father testified: “When I am around home I exercise care in looking after the children. I try to keep them around home. I did not know that the little boy was down at the railroad at the time he was hurt. As to what I was doing at the time he was brought home or just before, it was a little after supper,
We think we are fully justified in treating this as a case of unexplained presence of a child of tender years in a known place of danger, unaccompanied by anyone whose duty it was to care for him. These facts appearing in the record, we hold that there was prima facie evidence of plaintiff’s contributory negligence; and because of the fact.that the child’s presence was not explained or some evidence offered tending to show that he was there, despite the exercise of ordinary care on the part of his parents, we think the plaintiff has failed to make out his case.
For the reason that the evidence is insufficient to sustain the verdict, the- judgment and order are reversed, and the cause is remanded for a new trial.
Reversed and remanded.
While I agree with what is said in the foregoing opinion as to the law, I think there was sufficient evidence on the part of the plaintiff to warrant the' court in submitting to the jury the question whether plaintiff was guilty of contributory negligence, and I am therefore of opinion that the judgment and order should be affirmed.