| Ga. | Jun 17, 1913
Lead Opinion
(After stating the foregoing facts.) We think the petition made such a case as was sufficient to withstand the demurrer It was alleged that the torpedo which caused the death of the plaintiff’s son, who was eight years old, was placed on defendant’s roadway by its servants in a wanton and careless manner prior to the homicide; that the brother of the deceased, who- was 15 years old, picked up- the torpedo lying in the track on which they were walking to their work, as was customary with pedestrians, and, placing it on one of the iron rails, hit it with an iron tap or nut for the purpose of breaking it open, never having seen one, and not knowing that it was dangerous or liable to do any harm. The younger brother was standing 7 or 8 feet away, and when the torpedo exploded was struck by a piece of it, which caused his
In 3 Elliott on Railroads, § 1260, it is said: “It has been held that a railroad company is liable for an injury to a boy caused by the explosion of a torpedo which had been left upon the track by its employés at a place where children were in the habit of going with the knowledge and acquiescence of the company, and was picked up by another boy who was with him.” The general rule is well settled that children are only required to exercise such care for their own safety as may reasonably be expected in view of their age and condition. The question is usually one for the jury to determine, but the child may be so young that the court may say that he was non sui juris and incapable of contributory negligence, or so old and intelligent that he was guilty of contributory negligence as a matter of law, where it is clear that he did not exercise such care as should reasonably be expected of children of the same age and intelligence under the circumstances. There is no fixed period below which children are non sui juris and at which they at once become sui juris. Id. 1261. In the case of Sullivan v. Creed (1904), decided in the Irish High Court of Justice and Court of Appeal, 2 British Ruling Cases,- 139, the defendant had left a gun loaded and at full cock, standing inside of a fence on his land, beside a gap from which a- private path led over defendant’s lands from the public road to his house, and the defendant’s
In another English ease, that of Clark v. Chambers (1878), .3 Q. B. D. 327 (19 Eng. Rul. Cases, 28), the defendant, without legal right, had put a ehevaux-de-frise across a private roadway to prevent vehicles from coming up to his land. Some person, without his authority, removed part of the barrier to the footpath, and on a dark night the plaintiff, while lawfully using the road, knocked against one of the spikes and injured his eye. The defendant was held liable, although the immediate cause of the accident was the act of the stranger who had placed the barrier on the footpath. Cockburn, C. J., said: “It appears to us that a man who leaves in a public place, along which persons, and amongst them children, have to pass, a dangerous machine which may be fatal to any one who touches it, without any precaution against mischief, is not only guilty of negligence, but of negligence of a very reprehensible character, and not the less so because the imprudent and unauthorized act of another may be necessary to realise the mischief to which the unlawful act of negligence of the defendant has given occasion.”
There is nothing in the petition to indicate that the torpedo was being used by the railroad company as a signal device when it was picked up. On the contrary, the petition discloses that no train was at the place at the time the torpedo was picked up by the boy,
Another ground of demurrer is that the petition does not show by what agent and employee of the defendant, and when, the torpedo was left on its road-bed. We do not think this ground well taken. It is sufficient if it is alleged that the torpedo was wantonly, carelessly and negligently placed there by the servants and employees of the defendant prior to the injury; and this the petition does. Thus, it has been held that an allegation in an action for injuries caused by the negligence of the employees of a railroad company is sufficiently definite though it does not give the names of the agents or servants. Bolin v. So. Ry. Co., 65 S. C. 222 (43 S.E. 665" court="S.C." date_filed="1903-02-16" href="https://app.midpage.ai/document/bolin-v-southern-ry-co-3883968?utm_source=webapp" opinion_id="3883968">43 S. E. 665). And in the ease of Dinard v. Omaha &c. Ry. Co., 164 Mo. 270 (64 S. W. 124), in a case where a work-train on which the plaintiff’s husband was riding was backing west when it collided with a freight-train from the east, as the result of the negligence of defendant’s agents and servants while running the train, it was held that “A motion to make the petition more definite and certain, by specifying the agents and servants whose negligence caused the death of plaintiff’s husband, was properly denied.”
In view of all the allegations of the petition, we think this case is one for the jury, and should not have been dismissed on demurrer.
Judgment reversed.
Concurrence Opinion
I concur in the result, but I do not care, at this time at least, to concur in all of the reasoning of the opinion. I am not prepared to hold or intimate, that railroads can not employ torpedoes properly constructed and used for signaling purposes, lest they be removed by trespassing boys and exploded by them. But, as I construe the allegations of the petition, they mean that the torpedo was not at the time in use for signaling purposes, but had been carelessly or wantonly placed or dropped in the middle of the track and allowed to remain there by the defendant’s agents or employees who had charge of torpedoes for use as signals, where they knew that the public, including children, were accustomed to pass constantly without objection; and that the boy picked -it up and exploded it, and injury resulted therefrom. So construed, the petition sets out a cause of action; and I do not think it necessary to go further in the case. Mr. Justice Lumpkin and Mr. Justice Atkinson authorize me to say that they concur in this view.