23 Wis. 186 | Wis. | 1868
The jury must have found, under the instructions of the court, that the parents of the child were free from fault or negligence in allowing the infant to stray upon the railroad track. For the court specifically instructed the 'jury, that if they found from the evidence that the injury to the plaintiff was caused by the neglect of the defendant or its agents, while the parents of the plaintiff were in the exercise of ordinary care in guarding the plaintiff, then they should find for the plaintiff. The same proposition is substantially embraced in other parts of the charge — that if the negligence of the parents, or of those whose duty it was to watch the infant, contributed to produce the injury, no recovery could be had. The jury were told that they must consider all the circumstances appearing in the evidence, in order to determine whether the parents had exercised ordinary care in guarding the child, or not; and this was undoubtedly correct. As was forcibly argued by the counsel for the plaintiff, in determining this question of negligence, the condition of the family, the season of the year, the place of the accident, the probability that it would happen, and all
Then, we think the ruling of the court below correct upon another proposition, which has been very elaborately discussed by counsel, that is, whether an infant of only eighteen months old must be judged by the same rule as an adult, when exposing himself to danger. In denying the motion for a nonsuit, the court evidently was of the opinion that negligence could not be predicated upon the conduct of an infant of that age. But the counsel for the company insists that this is an erroneous view of the law, and that the correct rule upon the subject is, when an infant brings suit for injuries received, that he is bound to show himself free from all negligence, or want of proper care, tending to produce the injury, the same as an adult. He argues and claims that all plaintiffs suing for such injuries stand upon the same ground, and are subjected to the same rules; and that, so far as the right of recovery is concerned, whatever would be negligence or want of proper care in an adult, is negligence or want of proper care in an infant. We are not prepared to yield our assent to the soundness of such a proposition, even though cases may be found which seem to sustain it. An infant of the age of eighteen months is utterly incapable of exercising any care or discretion in any matter whatever. He is incapable of comprehending the imminent danger of remaining on a railroad track when a train of cars is approaching. He is necessarily incapable of exercising any judgment or forethought, can neither apprehend the danger to which he is exposed, nor take suitable means to protect himself against it. Negligence cannot properly be imputed to him, since he knows nothing of care, or diligence, or danger. And to say that he is bound to the same legal rules in regard to the exercise of care and diligence in avoiding danger, and
The child was, in the month of August, 1865, run over by a gravel train of the defendant, and lost his right arm in consequence of the injury so received. The railroad track ran across the farm of the plaintiff’s father, some forty or forty-five rods from the dwelling-house. The road had been in operation a year or more, but the company had neglected to construct any fences along the line of its road at that point. The child was on the track where a path, leading from one part of his father’s farm to the other, crossed the railroad. The plaintiff requested the court to give a number- of special instructions, the fourth, fifth and sixth of which were as follows:
“ Fourth. The defendant was guilty of negligence in failing to fence its road across the land in question.
“Fifth. If the jury find from the evidence that the want of a fence was the cause of the injury, without negligence of plaintiff’s parents contributing thereto, they must find for the plaintiff.
*191 “ Sixth. If tbe jury find from tbe evidence, that, owing to the want of a fence, this part of tbe road over tbe land in question was unsafe, and accidents more liable to occur there than where the road was fenced, and that tbe company bad notice of this fact, then it was tbe duty of tbe defendant to use more than ordinary care and diligence to prevent such accidents, and to run their trains with reference to this consideration.”
These instructions the court gave, under exceptions, and also gave, at the request of the defendant, this instruction: “ That the plaintiff cannot recover for the negligence of the defendant in not building said fence, unless you find that the injury happened without the fault of the plaintiff and in con-consequence of the neglect to build the fence, and that the fence would have prevented it.”
Now, considering these various instructions together, so far as they bear upon the question of the liability of the company arising from the fact that it had neglected to build a fence along the road at that place, they simply amount to this proposition : That though the defendant was guilty of negligence in failing to fence its road across the land in question, yet this fact would not authorize a recovery, unless the injury happened without the fault of the plaintiff’s parents contributing thereto, and in consequence of the neglect to build the fence, and the fence would have prevented the accident.
Assuming, then, these facts to exist, as we must after the verdict — that the parents exercised ordinary care in protecting the child; that the company neglected to build a fence along its road at that place, as the law required; and that the child was injured in consequence of this neglect, the question arises, In such a case is not the company liable ? The counsel for the company says that the failure to build a fence subjected the defendant to certain liabilities in case of an injury to cattle, horses, or other domestic animals; and that in case of injury
In answer to this argument, it must in the first place be remembered, that the statute imposes upon all railroad companies of this state the positive duty of erecting and maintaining good and sufficient fences on both sides of their roads, .with gates or bars therein, and farm crossings for the use of the proprietors of the adjoining lands. This is a clear, distinct and precise legal duty imposed by the legislature; and the failure to perform it by the company in this case was the sole cause of the injury. For the jury in effect found, that a fence would have prevented the accident. The facts in this case show, that for more than a year the company had run its trains over the road, neglecting all the while to build a fence at that place — omitting to do what not only the law required, but common prudence demanded should be done, as well for the protection of persons traveling on its road as for the security of the-domestic animals of those residing along the track, and the safety of children exposed to its dangers, who were incapable of taking care of themselves.
Now, when the company neglected to perform this duty, did it not necessarily assume responsibility for all damages which might result from that cause ? Can the court make an exception to this general liability, when an infant is injured solely in consequence of the want of a fence, no negligence of the parents contributing thereto? Would it not be an unwarrantable restriction of the statute, to hold that the duty imposed upon the company of maintaining a fence along its road had no reference to such children ? If one were to look at the mere verbiage of the last part of the first section (chapter 268, Laws qf I860,) he might conclude that the object of the law was solely for the protection of domestic animals. And yet the courts
Here, if tbe fence bad been erected, tbe accident would not have happened. Solely and entirely from tbe omission of tbe company to perform this clear, positive, absolute duty, tbe plaintiff is maimed and deprived of bis right arm. Had it been an ox or horse, or some other domestic animal, which bad been injured by tbe failure to erect tbe fence, tbe liability of tbe company would be clear and absolute, regardless of tbe question whether the owner bad been guilty of negligence. Can it be, then, a perversion of tbe intent of tbe statute to bold tbe company liable for a breach of the same duty, when a helpless infant is injured without any fault on tbe part of tbe parents? It appears to us not. In Wakefield v. Conn. &
In Singleton v. The Eastern Counties R. R. Co., 97 Eng. C. Law, 287, it seems to be assumed by the judges, that if the children had strayed upon the railroad track through the fence, at a place where a rail was off, which fence the company was bound to keep in repair, this would be such an act of negligence as would render the company liable. Mr. Justice Williams says : “ There was nothing to show how the children got on. the railway. All was mere conjecture and surmise.” But the fair inference from the case is, that if it had appeared that the child passed on to the track through a defective fence which the company was bound to keep up, then the action might have been maintained.
In this case, the connection between the omission of the company to perform its duty, and the accident which happened, is
The sixth instruction, above cited, calls for no special remark. "We think it substantially correct.
It was further insisted that the judgment should be reversed because the damages are excessive. The jury gave a verdict for $8,000. It is, of course, difficult for any one to estimate the real amount of damages which the child has sustained in consequence of the loss of his arm. The question was one peculiarly proper for the jury to determine. We cannot interfere, unless the excess is so great that we can say the jury must have acted under some improper influence or bias in the matter. This we cannot say.
There are many other points discussed in the arguments of counsel, but we do not deem it necessary to notice them. The questions which we have noticed are the controlling ones, and dispose of the cause.
By the Court.' — The judgment of the county court is affirmed.