99 Ky. 332 | Ky. Ct. App. | 1896
delivered the opinion oe the court.
By agreement these two cases were heard together in this court. They originated in the circuit court of Ho-p-kins county, and the first named case was an action brought by Willie Webb, an infant, suing by his father, W. H. Webb, as his next friend, to recover from the appellant damages for the loss of his right foot and ankle, alleged to have been the result of the negligence of the servants and agents of
In the action of the infant appellee the jury rendered a verdict in his favor, and fixed the damages at the sum of $5,000, and in the other, action the jury rendered a verdict in favor of the father, and awarded him the sum of $400, and a judgment having been rendered on the verdict in each case, and the court having refused to set aside the verdicts and grant the appellant new trials, the cases have been brought before us by appeal and a reversal of the judgment in each case is sought for various alleged errors, which will be noticed as far as the merits of the cases may require.
The accident occurred and the injury was inflicted upon the infant appellee a,t the Deer creek water tank on the line of the appellant’s railroad, situated about three miles south of Sebree City, in Webster county, on the 9th day of August, 1898. Four days before that date he reached the-age of eleven years. He was' living with his father and step-mother at Sebree City, and from the testimony detailed by his witnesses before the jury on the trial of his case, much of which was objected and excepted to a.t the time by
The train was a long one, and it arrived at the tank without accident or injury to any one, and after it stopped, and while water was being taken from the tank, the infant appellee and the other boys got safely off and ran along the side of the standing train to the tank, where the infant appellee took a drink of water. He and some of the other boys then went back towards the rear of the train, and after the train had started from the tank, and while it was in motion, the infant appellee and other boys took hold of the ladders on the side of the cars and swung to them, and, letting go, jumped from them to the ground while the train was moving; but when the infant appellee loosed his hold and jumped, his feet struck a pile of coal which had been placed on the right of way and was for the use of the pumping engine at the tank, and the coal slipped or gave way under his feet, and in this way his right foot went under the cars, and was run over and mashed, so that his foot and about three inches of his leg had to be amputated.
There is no proof that the conductor or any of the other employes of the company saw the infant appellee or other boys when they took hold of the ladders on the sides of the cars or when they were swinging from them, and they were not warned by any of them not to do so, or.of the1 danger of
■ After the accident happened the train was stopped, naving crossed the bridge which spanned the creek a short distance from the tank, and the conductor ran back and came up to where the infant appellee was lying.
Over the objections of the counsel for the appellant the court permitted several of the witnesses to testify that when the conductor came up he said that “this is just what I’ve been expecting for several days, but it is not my fault. If the boys had minded me Willie would not have been hurt.”
Counsel for the appellant also objected to all of the testimony of each of several witnesses, which the court permitted to be introduced in behalf of the plaintiff, that showed what the conductor said to the boys on the days previous to the accident with reference to their helping to unload freight at Sebree and riding to the tank.
The proof shows that the infant appellee was a boy of ordinary sprightliness and intelligence. One witness said that, in this regard, “he was just like the common run of boys.”
Dr. Parker, the physician and surgeon who attended him and who, with the assistance of Dr. Agnew, amputated his leg, said: “I consider him a sprightly boy — sprightly as other boys of his age and size.”
The appellee said to Patrick Williams, one of his witnesses, who carried him away after he was hurt, that “if I
At the conclusion of the testimony in behalf of the appellee, counsel for the appellant moved the court' to exclude from the jury so much of the evidence, already excepted to, as detailed what occurred at the depot at Sebree between the conductor and the infant appellee and other boys with reference to the boys helping to unload the cars and riding to the tank, and also all evidence of the statements of the conductor after the accident, to the effect that he had been expecting, for several days, some such accident to happen; and also moved the court to instruct the jury “to find for the1 defendant.”
It seems that the court did not at the time act upon either of the motions to exclude testimony from the jury, but overruled the motion for a peremptory instruction to which exception was taken at the time, and the first question to be considered arises upon the action of the court in overruling the motion to instruct the jury to find for the appellant.
The motion for the peremptory instruction carried with it an admission of the truth of the material facts brought out in the testimony of the witnesses for the appellee before the jury, and if, by this evidence, it was made to appear that the agents or servants of the appellant, who were in charge of the local freight train which carried the infant appellee to the Deer creek water tank from Sebree on the day he was injured, were guilty of negligence, which was- the proximate cause of the injury, then the court did not err in overruling the motion. Otherwise, the instruction ought to have been given, and the court erred in refusing to give it.
The important inquiry, therefore, is whether the facts
The facts being admitted by the motion, which is in the nature of a demurrer to the evidence, these inquiries are purely questions of law, which must be decided by the court. After a careful study of the facts under consideration and investigation of the questions involved, in the light of the authorities relied on and quoted in the briefs of counsel on both sides, and other authorities, we' have reached the conclusion that the facts do not show that the agents or servants of the appellant were guilty of negligence or of any act or omission of duty toward the infant appellee which can be said in any sense, to have been the proximate cause of the unfortunate accident, the results of which were so painful and are so much to be deplored.
This case must be governed by the ordinary principles of law applicable to cases involving questions of negligence and contributory negligence, except so far as the immature age of the infant appellee may affect the question of contributory negligence on his part. But it is manifest that his immature intelligence and unripe experience, by which he may have been, as alleged, unable to estimate the danger of swinging upon and jumping from a moving train of cars, can not be invoked to fix liability upon the appellant unless the agents or servants of the appellant voluntarily and knowingly exposed him to the dangers which resulted in his injuries, or, knowing that he was in danger, negligently failed to use such means as were in their power to relieve him from the danger and thus avoid the injuries, by reason of which failure the injuries resulted. In this view
Applying these principles to this case it is clear that the evidence under consideration wholly failed to fix liability on the appellant. It shows, that the infant appellee went into the caboose attached to the train of cars voluntarily, knowing that he was acting contrary to the wishes and commands of his parents, without being invited or persuaded so to do by the conductor and without his knowledge. The conductor boarded the train while it was in motion and on the way to the tank; and, assuming that the evidence shows, that the appellee was inside the caboose when the conductor entered
When the train reached the tank it stopped to supply the locomotive with water, and the appellee and the other boys got off safely, and the evidence fails to show that the conductor, or any of the trainmen, saw the appellee after reaching the tank until' after his foot was mashed. He was. not carried to a place where danger was naturally to be apprehended, nor was there any evidence that indicated that the infant appellee was so deficient in intelligence, by reason of immature age, or the want of natural capacity, as to render it necessary that especial care and watchfulness should be exercised to prevent him from exposing himself to danger whenever it might become apparent. If this was necessary then his parents were at fault in failing to enforce obedience to their commands, which were given in order that he might be saved from harm. But as they trusted him to obey, they exhibited their belief that his intelligence was sufficient to enable him to appreciate the necessity, of avoiding contact with moving trains. But after all the immediate or proximate cause of the accident was the dislocation of the lumps of coal when his feet struck the pile, by reason of which his foot was turned and projected on the railroad track, where it was crushed by the car wheels.
It can not be said that the placing of the coal there on its right of way by the company for its own necessary use was negligence, or that it was likely to be the occasion of such an accident. And so it is clear that the injuries which the infant appellee suffered were not proximately caused by any
As the case must be tried again, it will be proper to refer to some of the testimony introduced after the motion for a peremptory instruction was overruled, and to pass, on exceptions taken during the progress of the trial to the action of the court in admitting- and rejecting testimony offered, and in giving and refusing requests for instructions. But we shall do this for the most part in a general way, since the views we have already expressed as to the law applicable to the case are sufficiently explicit. After the motion for a peremptory instruction was overruled by the court a number of witnesses were introduced in behalf of the appellant, and among them the conductor, P. J. Herb, who had been in charge of the local freight trains between Howell, Indiana, and Earlington, Kentucky, for twelve years.
The bill of exceptions contains no evidence introduced by either party that showed that the conductor either invited or induced the infant appellee to ride to the water tank on the day he was injured, or that the conductor was. aware
Another witness testified that he saw him and other boys standing on the steps on the front end of the caboose when the train had reached a point which was about half way between Sebree and the tank. Other witnesses, however, testified that they saw him in the caboose at about that time, showing a conflict in the testimony as to the time when he entered the caboose. These facts are important in this connection only as they show the character of the testimony on both sides that was finally submitted to the jury, and upon which the instructions of the court as to the law of the case were given. Over the objections of counsel for the appellant testimony was admitted to prove what was said by the conductor to the boys, including the infant appellee, about helping to take freight from the train and riding'to the tank on days previous to the day on which the accident happened. This testimony ought to have been rejected. The case was between the infant appellee and the appellant, and the subject of the investigation was what occurred on the day the injuries were inflicted, and what occurred on previous days had no necessary connection with and was in no sense a part of the transactions of that day. For this reason also the court properly refused to allow proof to be made in behalf of the appellee of what it was
Although some of the instructions given by the court contain a fair statement of the principles, of law applicable to the case, yet, taken as a whole, they are not in accord with the views we have expressed. The same may be said of many of the requests that were refused by the court. The question regarding the degree of care that an infant is required to exercise to avoid injury in circumstances of peril becomes material in such cases as bearing on the question of contributory negligence when the evidence tends to establish negligence on the part of the person whom it is sought to make liable for the injury inflicted on the infant. The well-settled rule in such cases is that a child is required to exercise only such a degree of discretion and care as may be reasonably expected of children of his age and intelligence in any given circumstances of danger, but the mere immature age of the person injured can not be allowed to
And none of the authorities make age the only test of the degree of care required of children in such cases. The abstract proposition of law embraced in instruction No. 5 that the infant appellee “was bound to exercise only such care as a boy of like age and discretion would ordinarily exercise under the same or similar circumstances” may be conceded. But as a single proposition, submitted without any connection with the acts of the infant appellee and the circumstances surrounding him, it was misleading and erroneous because of the implied assumption that the appellant was chargeable with negligence, and that a boy of eleven years of age, irrespective of intelligence and natural capacity, could not be held guilty of contributory negligence. (L. & N. R. Co., v. Hunt, 11 Ky. Law Rep., 825; Erwin v. St. Louis &c., R. Co., 35 Am. & Eng. R. Cases, 390.)
On this line instructions “T” and “U,” given at the instance of counsel for the appellant, are unobjectionable; and instruction “J,” asked for by them and refused by the court, contains a correct statement of the duty of the conductor after he discovered the infant appellee on the train, and ought to have been given. After discovering him the conductor was under no obligation to stop the train to put him off short of the most convenient and reasonably safe place for that purpose. Instruction “A,” asked for by counsel for the appellee, was properly refused by the court, because it was based on the assumption, without any evidence to support it, that the conductor induced the infant appellee to ride on the train on the day of the accident, and that he induced or permitted him to swing from it while it was in
Instruction “B,” asked for by appellee’s counsel contained also the same unwarranted assumptions as were contained in instruction “A,” and instruction “C” was the same as No. 5, and they were both properly refused by the court. With regard to the instructions given by the court on its own motion, without entering into details-, we find that taken together they do not conform' to our views as> herein expressed of the law applicable to the case upon the evidence as set out in the bill of exceptions-, and upon the return of the case the- court will, in instructing the jury, conform to the principles of law as we have stated them.
. The other case of Yv. H. Webb, the father of the infant appellee in the first case, as we have stated, rests upon almost precisely the same facts in evidence. The two records presenting nearly the same question, our opinion in the first case settles the questions raised in the other. No testimony was introduced in behalf of the appellant and at the close of the testimony for appellee counsel for appellant moved for a peremptory instruction, which was refused, and which we are of the opinion ought to have been given.
For the reasons given the judgment in each of the cases is reversed and the causes remanded, with directions to set aside the verdict and award a new trial in each case, and for proceedings in each consistent with this opinion.