88 Va. 267 | Va. | 1891
delivered the opinion of the court.
The action was to recover damages for the alleged negligent killing of the plaintiff’s intestate, a child five years and one month of age. On the 9th of February, 1888, M. L. Groseclose, accompanied by his wife and five children, went to Meadoiv View, a station on the defendant’s road, in Washington county, to take a train for Rural Retreat, in Wythe county. He purchased of the depot agent at Meadow View íavo Aiholé tickets and tAvo half tickets for himself and family. Of the five children, Iavo Avere under fiA'O years of age; the other three Avere 0ATer that age, but under tAvelve.
Before the arrival of the train at the station, the father asked and secured the assistance of three gentlemen, aaLo Avere present, to get the children on the car. The train was a local freight train, liaAuug at its rear end a caboose for passengers. Upon the arriA’al of the train, and after it had stopped, the children and their adult attendants left the depot platform, and started for the train. SeA-eral passengers alighted from the caboose car, AAben Groseclose, the father, Avith one of the' children, Avent up the steps and into the car. He Avas folloAved by a Mr. Raff, Avho carried another child. Following Naff AA'as Mrs. Groseclose, but just as she had gotten up the steps,
The conductor of the train saw the party approaching the caboose, with the luggage, but paid no attention to them. In fact, he went in another direction, to see, as he says, about the freight. And not only this, but he deliberately ordered a brakeman to signal the engineer to back the train, when ho knew, or ought to have known, that passengers were in the act of getting on, to whom no warming whatever wats given. The whistle on the engine was not sounded, nor the bell rung, and the only signal to the engineer was a slight wave of the brakeman’s hand.
Under these circumstances, a clearer case ot culpable negligence, or the violation of the duty of a railroad company, as a part of the implied contract to carry safely, to give its passengers time to got off and on in safety, could hardly be imagined. Whart. Neg, sec. 648; N. & W. R. R. Co. v. Prinnell, 12 Va. L. J. 72.
The company, however, contends it was negligence on the part of the parents to allow the deceased to stand at. the place he was when struck, and that their contributory negligence bars a recovery. It is conceded that the deceased himself, by reason of his tender years, was non sui juris, and, therefore, incapable of contributory negligence.
There was evidence for the company, on the question of the parent’s negligence, tending to show that, the deceased when struck was standing behind the car, between the rails, apparently attempting to climb upon the bumper. But. this evidence must be rejected, because it is in conflict with the plaintiff’s evidence, which shows that he was not between the rails, but was standing near the car, on the ends of the ties. We say the
The doctrine of Hartfield v. Roper, 21 Wend. 615, has been repudiated in this state, as in many other states of the Union, and the doctrine established as just, stated. Beach, Cont. Neg. sec. 42; N. & P. R. R. Co. v. Ormsby, 27 Gratt. 455; Railroad Co. v. Snyder, 18 Ohio St. 408; Railway Co. v. Moore, 59 Tex. 64; Railway Co. v. Schuster, 113 Pa. St. 412; Robinson v. Cone, 22 Vt. 214; Daleg v. Railroad Co., 26 Conn. 591; Smith v. Railway, 92 Pa. St. 450; Pratt Coal Co. v. Bramley, 83 Ala. 371; Wymore v. Mahaska County, 78 Iowa, 396; 43 N. W. Rep. 264; Sioux City, &c., R. R. Co. v. Stout, 17 Wall. 657; 4 Am. & Eng. Encyc. of Law, 88, and cases cited.
/ Hence, when the facts are such that the child could have ' recovered had his injuries not been fatal, his administrator may recover, without regard to the negligence or presence of the parent, at the time the injuries were received, and although, the estate is inherited by the parent. Of course, it is essential to a recovery in any case that negligence on the part of the defendant be shoAvn. But when that is proA^en in a suit by the child, the parent’s negligence is no defence, because it is regarded not as a proximate but as a remote cause of the injury. And the reason lies in the irresponsibility of the child, aaLo, itself being incapable of negligence, cannot authorize it in another. It is not correct to say that the parent is the agent
In the last-mentioned case, which was an action by the administrator of a deceased child, two years of age, whose death was caused by the breaking of a bridge upon which the child was driven in a carriage by its parents, the Supreme Court of Iowa, after announcing the same doctrine, adds-:'
‘£ Some authorities seem to make a distinction between eases where the contributory negligence of the parent occurs while he has the child under his immediate control, and other cases which occur when the child is away from the parent; but we are of opinion that there is no sufficient grolmd for the distinction claimed. The authority of the parent does not depend upon the proximity of the child.”
•This view seems to us correct in principle, and is undoubtedly supported by the great weight of authority. In a recent work, wherein the subject is discussed and the cases are collected, the learned author says :
££ A doctrine formerly obtained in some courts of this country called imputed' negligence, under the operation of which, if a child, of such tender age as not to be capable of caring for its c own safety, was negligently exposed to danger by its parent or guardian and injured, the negligence of the parent or guardian would be imputed to the child, and tire child could not recover damages for the injury; but this rale,” he adds, ££ though approved at one time in several American jurisdictions, has been denied in others, and seems fast going by the board.” 2 Thomp. Trials, sec. 1687.
This instruction was rightly refused. The purchase of a ticket, before entering a railroad train, is not necessary to constitute a person a passenger, nor is there any evidence in the case tending to show that the'father was attempting to defraud the company, or was not acting in perfect good faith. It does not appear, moreover, that he knew a ticket for the deceased was required. The conductor of the train, a witness for the company, testified that tickets for children under six years of age were not required. In point of fact, however, the regulations of the company require half-rate tickets for children between the ages of five and twelve years. But if the conductor of the train was ignorant of that requirement, would it be strange if the father of the deceased was also ? This is a matter, however, of no importance whatever. The deceased, undoubtedly, was a passenger, and as such entitled to the utmost degree of diligence and care on the part, of the company in looking out for his safety. 2 Wait, Ac. & Def. 65 ; B. & O. R. R. Co. v. Noell, 32 Gratt. 394; S. V. R. R. Co. v. Moose, 83 Va. 827.
Complaint is also made of the action of the circuit court in refusing to permit the defendant to prove the declarations of the mother of the child immediately after the accident. The assignment of error on this point is general in its tei’ms, and no reasons are urged in support of it; nor are we aware of any principle upon which the declarations were admissible. The mother is not a party to the suit, nor interested in the result. Her declarations were merely heresay,
In short, we find no error in the record, and the judgment must be affirmed.
Richardson, J., concurred in the result.
•TI'DUMENT AFFIRMED.