Pratt Coal & Iron Co. v. Brawley
83 Ala. 371
Ala.
1887
Check Treatment
CLOPTON, J.

— Both tlie infant and the father may, in the absence of a statute, maintain separate and concurrent actions for personal injuries wrongfully done to his minor child. The principle on which the right to recover depends, and the elements of recoverable damages, are materially different in the two cases. When the infant sues for his own benefit, the application of the doctrine of contributory negligence depends on the capability of the plaintiff to exercise judgment and discretion. If the plaintiff is of such tender years, that he is conclusively presumed incapable of judgment and discretion, and of owing a duty to another, neither contributory negligence on his part, nor that of his parent, can be set up to defeat a recovery.- — Gov. Street R. R. v. Hanlon, 53 Ala. 70. A child between seven and fourteen years of age is prima facie incapable of exercising judgment and discretion, but evidence may be received to show capacity. If capacity be shown, the general rule of contribu- / tory negligence is applicable, whether the action is prosecu-1 ted on behalf and for the benefit of the child, or by the j father for his own benefit. Whenever the plaintiff derives ' his cause of action from an injury to a third person, the contributory negligence of such third person is imputable to him, so as t<? charge him with the consequences. The proof shows that the child was a few months over seven years of age, but there was no evidence tending to show the requisite capacity. In such case, the presumption of incapacity prevails. The special pleas, which set up as a defense the contributory negligence of the child, disconnected from, and unaccompanied by the negligence of the father contributing, are insufficient. The defect consists in the want of an averment of capacity, the complaint alleging that the child was ' of an age when prima facie incapable.

The present action is brought by the father, for his own benefit. The defendant filed other pleas, specially setting up the contributory negligence of the father, to which the court sustained a demurrer. When the father sues .for an injury to his minor child, his neglectful conduct, proximately contributing to the injury, is a bar to the action, unless the injury was caused by the wanton, reckless or intentional negligence of the defendant’s employees, after having discovered the peril of the child, or when they ought to have discovered the peril. — Beach on Con. Neg., 137; Frazer v. *375Louisville & Nashville R. R. Co., 81 Ala. 185. This is only the application in such case of the general rule, that the plaintiff’s contributory negligence is a full defense, which does not depend in any wise upon the capacity or incapacity of the child. Two actions were brought for personal injuries to a minor child, one by the infant, and the other by the father. The contributory negligence of the parent was set up as a defense in both actions. It was held in the first case, that the negligence of the parent was not imputable to the child, and did not defeat a recovery; and in the latter case, that it was a bar to the action. — Bellefontaine & Ind. R. R. Co. v. Snyder, 18 Ohio St. 399; 24 Ohio St. 670; Glasse v. Hestonville Railway Co., 57 Penn. St. 172.

The father owes to his minor chil’d the duty of due and proper protection against danger, as may be required by the circumstances and occasion; and the duty is the more imperative, in proportion to the indiscretion and helplessness of the child. Failure to extend such protection is negligence. If, by neglect of duty in this respect, he proximately contributes to the injury of his child, he will be regarded as a concurrent wrongdoer with the party doing the injury. Argument is unnecessary to show that a father is guilty oij negligence, who knowingly permits a child of about seven!; years of age to go, unprotected, on the track of a railroad,) to get coal at a place where trains are constantly passing. It may be said, that the plea avers this was by the permission of her grandmother; but it also alleges that she was under the care of her grandmother, by permission of the plaintiff. A parent is responsible for the negligent and wrongful acts of the person to whom he intrusts the custody and care of his minor child. If the grandmother, thus having the care of the child, permitted her to trespass on the track for the purpose of getting coal belonging to the defendant, lying on or in dangerous proximity to the track, where trains were constantly passing, and such trespass contributed to her injury, the plaintiff is chargeable with the consequences. — Bellefontaine Railway Co. v. Snyder, 24 Ohio St. 670; Moore v. Penn. R. R. Co., 4 Amer. & Eng. R. R. Cas. 569. The demurrer to the plea was wrongfully sustained.

By the act of January 23, 1885, when any personal injury to any minor child is caused by the wrongful act or omission of any person, or any officer or agent of an incorporated company, or association of persons, the father, if living, *376may maintain an action for such wrongful act or omission, and recover such damages as the jury may assess; provided, that but one suit shall be maintained for such injury.- — Acts 1884-85, p. 99. The statute does not abrogate the rule, that either may maintain an action, but prohibits concurrent or successive suits for one and the same injury by both father and child; and giving it a liberal construction, its operation is to authorize, in a suit brought by the father, the recovery of the damages which, independent of statute, would be recoverable only in a suit by the child — so that the pendency of one suit, or judgment therein, would be sufficient in abatement, or bar, of the other. An election as to the party who shall sue is given; but, if the father sues, he is not exempted from the consequences of his own contributory negligence, or that of his child, if of suitable age or capacity. Whoever sues must take the burdens of an action brought by such party; and if the father be the plaintiff, the right to recover will depend on the principles we have declared. It may be well to remark, that section 2588 of Code of 1886 materially modifies the act; but the modification does not affect this case.

As the defendant did not have the benefit of 'the defense of contributory negligence on the trial, and as the liability of the defendant will be governed by other considerations, if the truth of the plea be established, and the effect of the evidence may be thereby materially varied, it is unnecessary to review the conclusion and judgment of the City Court on the evidence.

Reversed and remanded.