78 Neb. 24 | Neb. | 1907
Lead Opinion
This is an appeal from a judgment for damages for a personal injury to a son of the plaintiff, a lad 12 years of age.
There is a foot passage way or sidewalk along the side of a viaduct in the city of Omaha. On the outside of this walk, and along the edge of the viaduct, is an iron railing or fence 44 to 46 inches in height, and constructed
We think that the instruction ought to have been given. It does not appear that the defendant’s structure was unskillfully or negligently made, or that it differed in any respect from such as are required by. the regulations and authorities of the city and áre in general use for like purposes elsewhere. If the wire lacked insulation it is not shown that that fact was known to the defendant or its employees, or had existed for so long a time that knowledge thereof by it or them may be presumed, or that want of knowledge was due to negligence. The wire was not within the public highway or so near thereto that travelers thereon were likely to come in contact with it, nor does it appear that any such persons had ever done so. The structure is not of such a character as to be obviously attractive to children or likely to be used by them as a plaything, nor does it appear that it ever was so used, except on the occasion under inquiry. The hearsay testimony about another boy having received a shock at another time is, of course, not evidence, and the event, if it happened, is not shown, even by hearsay, to have come to the notice of the defendant. Even if the wire was negligently allowed to remain insufficiently insulated, of which we think there is not sufficient evidence, the injury complained of is not such a one as could reasonably and naturally have been anticipated would result therefrom, and it is only for the natural and probable consequences of negligence that a person accused of it is responsible. Cole v. German Savings and Loan Society, 124 Fed. 113, and authorities cited; Stark v. Muskegon T. & L. Co., 141 Mich. 175; Powell v. New Omaha T.H. E. L. Co., 74 Neb. 280; City of Crete v. Childs, 11 Neb. 252. This rule is too well settled to require further citation of authority in its support, and we do not understand that it is at all interfered with or affected by the fact that a person who may accidentally suffer an injury is a child of tender years.
We have not seen occasion for discussing the character and intelligence of the plaintiffs son, which, if there was evidence of negligence by the defendant, would ordinarily be a question for the jury. He showed a somewhat remarkable persistence in the pursuit of a known danger, and seems to have fully and accurately anticipated and appreciated the injuries likely to be, and Avhich were, consequent upon it, namely, a burning of his hand and a considerable shock to his nervous system. It appears to us at least doubtful if a person thus competent to judge of his own conduct, in connection. with known circumstances, can be excused from the charge of contributory negligence because of his youth. But in all such cases the foundation of a right of recovery, if there is any, is not the tender years of the plaintiff, but the culpable negligence of the defendant, which latter is in this case wholly unproved.
For the reasons given, we recommend' that the judgment of the district court be reversed and the cause remanded.
By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed and the cause remanded.
Reversed.
Rehearing
The following opinion on rehearing was filed October 16, 1907. Former judgment of reversal adhered to:
A reargument has been heard in this case because a motion for a rehearing complained of certain misstatements of fact in, the former opinion, ante, p. 24. The opinion says that at the time of the happening of the injury in suit the defendant was not aware that its wire was without insulation at the point of contact therewith by the plaintiff’s son, and was at that time without knowledge of a previous injury therefrom to another boy. Both these statements are erroneous, but to what extent either is material may be a subject of debate. The second of them is better described as inaccurate than erroneous. It is not shown -what was the age of the boy formerly hurt, or how or in what circumstances the mishap took place, or .that it was such a one as would reasonably have been anticipated to recur. It was these matters upon which the mind of the writer of the opinion dwelt and to which he intended to give expression. There is, in our view, nothing in the nature of an electric light wire, placed eighteen or more inches outside a public way and defended by a substantal fence four feet high, which would lead a person to suppose that it is attractive to children of tender years as a plaything, and there is no evidence that the defendant knew or apprehended the wire in question to be so. Decided cases involving the right of children of tender years, or their parents or guardians, to recover for the consequences of negligent injuries fall into several classes. One of them is of those instances where the child is employed or is rightfully present in a place of danger, and does or omits an act or acts which in a person of mature years and ordinary experience and intelligence would be admittedly negligent, but for which conduct the child, on account of his supposed lack of these qualities, is either absolutely excused, as .a matter of law, or the degree of his incapacity or lack of discretion, and consequent irresponsibility, is left to the jury as a question of fact. The line of discrimination between these two
One inference from these decisions seems to be quite clear, and that is that the rules of law and practice relative to the Aveight, sufficiency and con elusiveness of evidence with respect to any of the foregoing questions, in cases in which they are to be decided upon evidence, are not different from such as are applicable to the trial of other cases. Noav, we are far from assuming, in the absence of proof, that an electric light Avire situated as was the wire of the defendant is an object of such a nature, or is so generally knoAvn to be such that the defendant must be presumed to have known it so to be, as to attract and induce children of tender years, or boys of ten or tAvelve years of age, to make use of it as a plaything. Neither do we think the evidence sufficient to prove that the defendant had such knoAvledge, or that the Avire Avas in fact of such a nature. So far as our own observation goes or legal literature discloses, the casualty complained of was singular and peculiar. The circumstances of the former mishap are unknoAvn, and it is a matter merely and Avholly of conjecture whether it occurred in circumstances like those in the pending case or otherAvise. And one SAvalloAV does not make a summer. . Even if the circumstances had been shown to be similar, the defendant might have been excused from apprehending, because of its knowledge of one such happening, that so singular and improbable an event would be repeated, and breve been permitted to rest securely upon its knowledge that its Avire, though the insulation was slightly impaired, Avas so guarded as to
We know of no rule of law to the effect that, when one is negligent in a situation of danger the existence and nature of which he knows, he may nevertheless recover damages because the resulting injury is greater than he anticipated. We think the case falls precisely within the rule which governed the decision of Frauenthal v. Laclede Gas Light Co., 67 Mo. App. 1, in which the plaintiff’s son, a boy seventeen years old, purposely took hold of the end of a broken electric light wire, knowing the danger of so doing, but not its extent, and was killed. A recovery was denied and the deceased was held to have been guilty of contributory negligence as a matter of law. Irrespective therefore of the question of negligence of the defendant company, we are of opinion that the former judgment of this court should be adhered to because the negligence of the plaintiff’s son was a contributory, if not the sole, cause of the injury complained of. The case appears to us to be quite unlike-the turntable cases and others of like kind, where children are injured by machinery and appliances attractive as playthings and left unguarded in such situations as to invite them to gratify their impulses without knowledge or apprehension of danger, and it is only in accordance with the principle of those cases that the plaintiff seeks to recover.
We therefore recommend that the former decision of this court be adhered to.
By the Court: For the reasons stated in' the foregoing opinion, the former decision of this court is adhered to.
Reversed.'