116 Ala. 294 | Ala. | 1896
The rule in respect to contributory negligence of children has been stated by this court to be, that “a child between seven and fourteen years of age is prima facie incapable of exercising judgment and discretion, but evidence may be received to show capacity. * * * * if the plaintiff is of such tender years, that he is conclusively presumed incapable of judgment and discretion, and of owing duty to another, neither
In speaking of the liability for injury to trespassing children, Elliott, in his work on Railroads, says : “In actions for injuries to children, as in other cases, there can be no recovery unless the defendant has been guiltj^ of a breach of duty. * * * * There is a sharp conflict among the authorities, however, as to what the duty of a railroad company is to children who come upon its premises as trespassers or mere licensees. We believe the true rule to be that, although the age of the child may be important in determining the question of contributory negligence or the duty of the company after discovering him, the company is, in general, no more bound to keep its premises safe for children who are trespassers, or bare licensees not invited or enticed by it, than it is to keep them safe for adults.” To sustain this doctrine hq cites along list of authorities from many courts. — 3 Elliott on Railroads, § 1259.
In Bishop v. Union R. R. Co., 14 R. I. 314, similar in principle to the one before up, and which, from the frequency of its citation as well as from its own inherent-merits, seems to be a leading case on the subject, the Supreme Court of tliat State lay down the doctrine, that the owner of property which has been trespassed upon, is not liable to the trespasser for an injury arising from the trespass merely because he might by care have guarded against it. Referring to the class of cases relied on by appellant in this case, to sustain his complaint, — as where defendant’s servant left his cart and horse in a public street, unattended, for half an hour, and a boy six years old, who had gotten into the cart and attempted to get out was injured, after another boy had started the horse off, (Lynch v. Nurdin, 1 Ad. & El. N. S. 29); or where a child six years old was injured while playing with a turn table of a railroad company, (Railroad Company v. Stout, 17 Wall. 657); or where defendant put a heavy gate on his own land, beside a passway which was used by children, going to and from the public road, but left it so carelessly that it fell upon and injured a child between six and seven years old,
From what has been predicated, it will appear that counts of the complaint, numbered 1, 2, 3 and 5, were insufficient as charges of negligence against defendant, and were subject to the demurrer interposed to them.
The fourth count was intended to set up that the servants of the defendant willfully or intentionally caused the injury to the child. It not only fails in this respect, but does not even aver any actionable negli
Affirmed.