28 Ind. 287 | Ind. | 1867
— Huffman filed his complaint alleging “ that the railroad company, defendant, on the — day of April, 1865, was running her locomotive and tender on the TJnion track in Indianapolis, through thickly populated parts of said city, where persons and children of tender age were frequently passing and repassing across and upon said track, of right, and where children of tender years were frequently known by the employees of said company to be found, requiring the utmost care on the part of those running and managing such locomotive to avoid injury to such persons and children.
“ That the plaintiff is a child of tender years, being under the age of five years, and had not prudence and foresight to avoid or apprehend the danger from the movement of such objects, nor to be on the lookout for them.
“ That said plaintiff was, on the day aforesaid, by accident, with other children, playing near and on said track at a point near his home, and said defendant then and there, in a careless and wanton manner, ran said locomotive and tender upon plaintiff and oyer his legs, crushing the same so that amputation became and was necessary, and his said crushed limb was amputated, whereby he became and is maimed and a cripple for life, said plaintiff’ not being old enough to exercise prudence or foresight or forethought, or to apprehend danger. Said plaintiff has also suffered great pain, all to the damage of plaintiff,” &c.
Valentine Huffman, father, consents to appear as next friend of plaintiff.
A demurrer to this complaint was overruled. It was held, in the case of The Pittsburgh, Ft. Wayne and Chicago Railway Co. v. Vining’s Adm’r, 27 Ind. 513, that “ the unnecessary exposure to known danger of a child incapable of exercis
That the plaintiffj a child under the age of five years, was, by accident, “playing near and on said track, at a point near his home,” is, unexplained, an admission of negligence on the part of those having the custody of his person; and, to render the defendant liable, its conduct must- have been so negligent as to amount to a willingness to inflict the injury. Is this eharged.in the complaint? It is averred that the defendant, “ in a careless and wanton manner, ran-said locomotive,” &c., “ said plaintiff not being old enough to exercise prudence, or foresight or forethought, or to apprehend danger.” It appears by the form of this allegation that the negligence charged against the railroad company was such, because the plaintiff was not old enough to exercise prudence.
Where the question is one of simple negligence, there is no distinction between the case of a child unnecessarily exposed and that of a person of mature years. Where the question becomes one of gross neglect or willful misconduct on the part of the defendant, the rule cannot be the same. Thus, if an engineer of a locomotive discovered a young child on the railroad track, he would be required to-use greater effort to stop the train than could have been expected from him if he had discovered a grown person in-
On the trial, the following instructions were given over the exception of the defendant:
“ It was the duty of defendants, and they were bound, in the management of the engine and tender, to use such diligence and care as prudent and discreet persons should use and exercise on such occasions, having due regard to the safety of persons; and if, owing to the absence of such diligence and care, the plaintiff was injured, he is entitled to recover, unless from his own negligence or want of reasonable care he brought the injury upon himself.”
It was not necessary that the negligence of the plaintiff should have “brought the injury upon himself;” if'it directly contributed to that result, it would have defeated the action, where the defendant was only chargeable with want ■of ordinary prudence.
The fifth instruction was liable to the same objection.
The court misdirected the jury as to the degree of diligence required of the defendant, in the following instruction :
“ Although the plaintiff may have been in fault, if the employees of the defendant with reasonable diligence might have avoided the injury, it was their duty to have done so; and their failure to use such diligence would render the defendant liable.”
Where the plaintiff is in fault, a want of reasonable diligence will not render the defendant liable.
The judgment is reversed, with costs, and the cause remanded for a new trial.