St. Louis & S. F. R. v. Underwood

194 F. 363 | 5th Cir. | 1912

MAXEY, District Judge

(after stating the facts as above). [1] The issues of the case were submitted to the jury, and it must be presumed upon proper instructions, since the charge was not excepted to and it does not appear in the record.

[2] Examination of the testimony makes it evident that the material allegations of the declaration are supported by the proof. That the conduct of the defendant, in placing the lumber in an exposed situation and easily accessible to children of tender years, constitutes actionable negligence, plainly appears by reference to the following authorities: Union Pacific Railway Company v. McDonald, 152 U. S. 262, 14 Sup. Ct. 619, 38 L. Ed. 434; Spengler v. Williams, 67 Miss. 1, 6 South. 613; City of Vicksburg v. McLain, 67 Miss. 4, 6 South. 774; Mackey v. City of Vicksburg, 64 Miss. 777, 2 South. 178; Temple v. McComb City Electric Light & Power Company, 89 Miss. 1, 42 South. 874, 11 L. R. A. (N. S.) 449, 119 Am. St. Rep. 698, 10 Ann. Cas. 924. In the McDonald Case, 152 U. S. at page 277, 14 Sup. Ct. at page 625, 38 L. Ed. 434, Mr. Justice Harlan quotes the following language used by Chief Justice Cooley in Powers v. Harlow, 53 Mich. 507, 19 N. W. 257, 51 Am. Rep. 154.

“Children, wherever they go, must be expected to .act upon childish instincts and imj mises; and others who are chargeable with a duty of care and caution towards them must calculate upon this, and take precautions accordingly. If they leave exposed to the observation of children anything which would be tempting to them, and which they in their immature judgment might naturally suppose they were at liberty to handle or play with, they should expect that liberty to be taken.”

[3] But it is insisted by counsel that if the father, who had charge of the lumber as section foreman of the defendant, was negligent, either in failing to keep the pile of lumber in a safe condition, or in permitting the child to play on it, that his negligence was imputable to the child. It should be borne in mind that this suit is brought, not for the benefit of the parents, but in behalf of the child, for injuries by her sustained. In such case the better rule, which is supported! by the decided weight of authority, is that the negligence of the parents should not be imputed to the child. 1 Thompson’s Com. Law. Neg. §§ 292, 293, 294; Westbrook v. Railroad Company, 66 Miss. 560, 6 South. 321, 14 Am. St. Rep. 587; Railway Company v. Hirsch, 69 Miss. 126, 13 South. 244.

The admission of the testimony objected to by the defendant was not prejudicial error. The moderate amount of the verdict rebuts any presumption of prejudice on the part of the jury.

Finally, it is objected that the court erred! in permitting the witness Keel to testify that the pile of lumber was dangerous to children playing on it. We perceive no error in admitting the testimony. The question was one of fact, about which any one of ordinary intelligence might have testified. Besides, the evidence was merely cumulative, since the witness Wells had testified without objection to the same fact.

We find no reversible error in the record, and the judgment is therefore affirmed.