If, on a review of the evidence, and on the law arising upon it, it shall appear to the court that this is a case for damages, then it.must be sent to a jury for an assessment of the amount to be accorded to the petitioner. It has been argued and submitted on the question whether or not it is a case for damages and for a jury, and this is the first question upon which I am to pass. It is not pretended that any evidence in addition to that now before the court can be had in the case. Indeed the case has been closed as to the taking of evidence. So that, all the evidence being in, and the case submitted upon the question whether or not it is a case for an enquiry as to the amount of damages, it is not only competent for the court to determine whether or not it is a case for damages; but also, if concluding that it is not, to dismiss the petition finally.
The law of negligence applicable to such a case as that at bar may be stated as follows: The plaintiff in an action for negligence cannot succeed if it is found that he has himself been guilty of any negligence or act which caused the accident, unless the defendant could, by the exercise of ordinary care and diligence, have avoided the mischief which happened. Radley v. London & N. W. Ry. Co., L. R. 9 Exch. 71. The present case turns upon the latter enquiry; for whether it be a grown person or a child who wantonly gets upon a running engine, the managers of the engine and train are bound to use ordinary care and diligence to avoid accident to him. And, if that ordinary care and diligence appears, there can be no recovery; whether the sufferer by the accident be a grown person, or a youth capable of knowing whether or not his act was wrongful and dangerous, or a child too young to conceive the nature of his act. The testimony shows that the engineer acted upon the rule which the experience of railroad men has taught to be the wisest, safest and best one; namely, when danger threatens, to stop the engine and reverse it. The testimony shows that the fireman acted upon the belief (evidently proper) that it was best for that boy to bold on, and for himself to go to his rescue and to lift him dear of entanglement with the machinery. The testimony thus proves that these men used more than ordinary care and diligence in these respects and brings the case within the rule which exonerates defendants from liability to damages. ,
The testimony indicates that the boy was killed, not from want of ordinary care and diligence in the engineer and fireman, but from a jarring of the engine necessarily incident to the position in which he had placed himself, and from a lameness which disabled him from keeping clear of the machinery when he dropped from the engine. Even if it were true, which I by no means concede, that the engineer committed a mistake in stopping and reversing the engine, yet this would not subject the defendants to liability. He was bound only to use “ordinary care and diligence;” he was not bound to avoid mistakes, committed with bona fide intention to carry out reasonable rules and orders prescribed for such emergencies. If he innocently committed such a mistake, then the case falls within that most excellent rule of law .laid down by Dr. Wharton (Whart. Neg. § 314): “The law has so high a regard for human life that it will not impute negligence to an effort to preserve it, unless made under such circumstances as to constitute rashness in the judgment of prudent persons.” And another writer says (Bigelow, Torts, p. 312): “The defendant can never be liable when anything out of the natural and usual course of events transpires in such a way as to make the defendant’s negligence, otherwise harmless, productive of injury.”
Some of the more general principles of law governing a case like that at bar are the following: “When a man does everything in his power to avoid doing the mischief, then the liability- ceases, and the event is to be regarded as a casualty.” Whart. Neg. § 7S1. “A person is expected to anticipate and guard against all reasonable consequences of his act, but not to anticipate and guard against
I think these extracts contain the law of the present case. These men did, not only what prudent men usually do in such an ■emergency as that which happened, but they did what the experience of railroad men, and rules of prudence usually governing the running of railroads required them to do. I have considered the case without any reference to the doctrines of contributory negligence. If a grown and responsible man had got upon that engine while in motion, and suffered the injuries sustained by the boy Miles, there would have been no semblance of blame attaching to the railroad officers. The fireman might have ordered him off peremptorily; and the engineer might have stopped the train as abruptly as he had chosen; all without incurring liability for.fault, if they acted in good faith; and there could have been no recovery. But there are cases in which children and persons of. unsound mind are considered incapable of responsibility for their acts and are not held to the consequences of them, however reckless or tortious. If the boy in the present case .had been too young to know that he was doing wrong and incurring risk of danger in getting on a running engine, then the conduct of the men on the engine could be judged wholly without reference to the boy’s act, and if they were guilty of fault, liability for damages would have been incurred. In what has been said, I have treated the' case in that point of view. But, is a boy in his eighth year incapable of discerning that such an act as that of young Miles, was wrong and perilous? This boy, it seems, was frequently on the street. His being often upon the street alone, implies that his mother thought him capable of knowing how to keep out of danger; for they lived on the very street on which the freight trains and locomotives of the defendants habitually ran. It is not the case of a child two or three years old being run over by a train on the track of a railroad in the country, at a point distant from a depot, where trains pass at full speed and afford but short notice of their approach, — as in Ex parte Stell [Case No. 13,358], decided by me. Nor is it the case of a child being injured while on a street traversed by a railroad track in consequence of the train moving faster than is allowed by law, or of a car becoming detached in consequence of some omission or careless act of an employe, as in Norfolk & P. R. Co. v. Ormsby, 27 Grat. 455. Here there was no surprise; no unusual speed; no act of carelessness. There was a look-out at ■each end of the train. The engine was properly manned and managed. The engine bell was ringing the alarm. The child was not a helpless, thoughtless, listless infant. He was not run over while unconsciously at his play. It was the case of a boy nearly eight years of age, frequently on the street, who himself got on an engine in wantonness, and who dropped off, probably of his own accord in fright; or possibly from inability to stay on a place not arranged to secure a safe footing for any one. I think it is a fair, if not a necessary inference from the acts of this boy and his mother, that he was intelligent enough to know the nature and danger of what he was doing. In all the cases of injuries to children which I have seen in the Reports, they were the passive subjects of injury. Here, however, is the unusual, if not the unprecedented case of the child being the actor on the occasion, and the originating author of the misfortune which befell him. I think this child was capable of intelligent choice between what was wrong and dangerous on one hand; and what was right and. safe on the other; and that he intelligently chose the wrong and dangerous course. If this be so, the law is plain. The supreme court of the United States, in Railroad Co. v. Gladman, 15 Wall. [82 U. S.] 408, say: “The rule of law in regard to the negligence of an adult and the rule in regard to an infant, is quite different. By the adult there must be given that care and attention for his own protection that is ordinarily exercised by persons of intelligence and discretion. If he fails to give it, his injury is the result of his own folly, and cannot be visited upon another. Of an infant of tender years less discretion is required; and the degree depends upon his age and knowledge. Of a child three years of age, less caution would be required than of one of seven; and of a child of seven less than of one of twelve or fifteen. The caution required is according to the maturity and capacity of the child; and this is to be determined in each case by the circumstances of that case.” The same proposition is repeated by the same court in Railroad Co. v. Stout, 17 Wall. [84 U. S.] 660. In Ly nch v. Smith,
On the whole evidence and the law arising upon it, as laid down recently in the cases of Richmond & D. R. Co. v. Anderson, 31 Grat. 812, and Railroad Co. v. Jones [95 U. S.] 443, and in my own decision in the case of Ex parte Stell [supra], filed in the papers of that cause, I hold that the defendants in this case are not liable in damages to any amount; that an issue of chancery for a jury must be denied; and that the petition must be dismissed, but without eosts against the petitioner, — and I will so order.
A copy
Teste.
[Seal.] ’ M. P. Pleasants, Clerk.