167 Mich. 596 | Mich. | 1911
(after stating the facts). The court erred in submitting to the jury the question of the contributory negligence of plaintiff’s intestate. The fact is undisputed that for a distance of 70 feet before he reached the crossing plaintiff’s intestate could have — must have — seen the approaching train, had he looked. The view was unobstructed; the train could have been seen a half mile or more to the east. He was not riding fast; he was riding down a slightly inclined walk; he was a normal lad, except for a slight deafness in one ear, of average intelligence, used to going about the city, crossing railroad tracks and managing a bicycle. He lived in the vicinity, and had apparently crossed these tracks within a very few minutes. The crossing sign was before him. He was alone, with nothing to distract his attention, intent upon no errand, with no playmates preceding or following him. We must assume, in view of the testimony, that the jury, under the charge of the court, found in his youth excuse for his carelessness. There ought to be no dispute about the governing rules. It is true that “duty can only be predicated of one who has capacity to understand and ability to^perform,” and that the care to be exercised by children, while it must be ordinary care, must be proportioned to their age and capacity.
It was said, Ecliff v. Railway Co., 64 Mich. 196, 202 (31 N. W. 180, 183) :
“Where there is any conflicting evidence as to the danger likely to be incurred, or as to the act or acts in*601 getting in the way or reach of such danger, or as to the age or capability of the child, the question of the contributory negligence of the person injured or killed should be submitted to the jury.”
The rule is a familiar one. Cooper v. Railway Co., 66 Mich. 261 (33 N. W. 306, 11 Am. St. Rep. 482); Baker v. Railroad Co., 68 Mich. 90 (35 N. W. 836); Wright v. Railway Co., 77 Mich. 123 (43 N. W. 765); Lehman v. Steel Works, 114 Mich. 260 (72 N. W. 183). It was further said in the Ecliff Case:
“A boy of 12 years knows as well as an adult that upon the top of freight cars, or in front of the engine, when reversed, betweén that and the cars, is not a safe place when the train is moving. The fact that a boy of that age is more reckless and not as cautious as a man, in the face of such danger, is not of itself enough to excuse him.”
In Henderson v. Railway Co., 116 Mich. 368, 374 (74 N. W. 525), a boy eight years old was injured by a street car. It was said:
“ Witnesses for the plaintiff state that, if the boy had looked in the direction of the car, he could have seen it. It was but common prudence in crossing such a thoroughfare to look, not only for the car, but for any vehicle which might be coming. Injury would have occurred from collision with an ordinary wagon just as surely as from running into this car, and, from the testimony of the lad himself, he had intelligence enough at the time to know this. Why, then, should it be left for the jury to say that he had not ?”
See, also, Trudell v. Railway Co., 126 Mich. 73 (85 N. W. 250); Perego v. Railway Co., 158 Mich. 225 (122 N. W. 535). In the Ecliff, the Trndell, and Per ego Oases, the injured child was trespassing; while in the case at bar, as in the Henderson and in the Baker Cases, the child was rightfully in the highway, crossing the track upon which injury was received. The test to be applied to determine whether the injured person was negligent is not different in either case.
“As to any given event, a child is responsible for just such care for his own safety as may reasonably be expected of one of his age, development, and intelligence under the circumstances characterizing the particular event.” Secard v. Lighting Co. (Wis.), 133 N. W. 45.
We are left in no doubt concerning the manner in which plaintiff’s decedent was killed. His intelligence and his ability to appreciate the danger which actually threatened, and to avoid it, if seasonably discovered, cannot be questioned. He did not discover the actual danger. Under the circumstances, he was chargeable with some degree of care for his own safety, and it does not appear that he exercised any care. The jury should have been so instructed.
Whether the cause should go down for a new trial depends upon whether, as appellee contends, there was testimony tending to prove the gross, wanton negligence of defendant’s servants. It is certified that the record contains the substance of all of the testimony given at the trial. We do not find in the declaration any allegation that the peril of plaintiff’s decedent was discovered by any of the servants of defendant, after which defendant failed in the exercise of due care. The term “gross negligence” has been used in cases decided by this court, and has a definite meaning, when referred to as authorizing a recovery for a negligent injury, notwithstanding the contributory negligence of the plaintiff. It means the intentional failure to perform a manifest duty, in reckless disregard of the consequences as affecting the life or property of another. It also implies a thoughtless disregard of consequences, without the exercise of any effort to avoid them. Schindler v. Railway Co., 87 Mich. 400, 411 (49 N. W. 670); Denman v. Johnston, 85 Mich. 387, 396 (48 N. W. 565). In Labarge v. Railroad Co., 134 Mich. 139 (95 N. W. 1073), the cases are reviewed, and the doctrine of “ gross negligence,” as stated and defined
“ It is urged by plaintiff’s counsel that the negligence of defendants was so gross and wilful as to excuse concurring negligence on the part of the plaintiff; it being claimed that where the negligence of the defendant is gross or wilful the contributory negligence of the plaintiff is not a defense. This is but another way of stating the doctrine of comparative negligence, which has never obtained in this State. It is true that the contributory negligence of the plaintiff does not prevent recovery in a case where the defendant, who knows, or. ought, by the exercise of the most ordinary care, to know, of the precedent negligence of the plaintiff, by his subsequent negligence, does plaintiff an injury. * * * This rule does not permit recovery, notwithstanding plaintiff’s contributory negligence, hut it recognizes that such discovered negligence of plaintiff, or his negligence which should have been discovered, is not a contributing cause to the injury in a legal sense. This, we think, is the logical statement of the rule as deduced from the authorities.”
See, also, Buxton v. Ainsworth, 138 Mich. 532 (101 N. W. 817).
There was a conflict of testimony concerning the speed of the train; little, if any, actual conflict as to the giving of signals, or as to whether the headlight of the locomotive was burning. Witnesses testified that they did not hear the signals, although in a position where they could have heard them; did not see the burning headlight. Other witnesses testified that the signals were given, and that the locomotive carried a lighted headlight. Glen-wood avenue is the street first reached and crossed by defendant’s trains from the east. It is near the eastern limit of the city. Defendant’s engineer, who drove the locomotive engine upon the occasion in question, was a witness for defendant, and testified that when he first noticed the Knickerbocker boy he was approaching the crossing, and the engine was about 100 feet from the crossing. The boy was 25 feet or 30 feet from the track. The boy appeared to be “ stooped over, had his hands on the handle
The judgment is reversed, and no new trial will be granted.