| Ark. | Dec 31, 1906
This is an action brought by Willie Sparks, a minor, by his next friend to recover damages for an’injury caused by one of the cars of the defendant railway company. At the time of the accident Willie Sparks, a boy between nine and ten years of age, was returning from the place where he attended school to his home. He and.a number of other school children walked along the side of the railway track, and then attempted to cross the track. The employees of the company had left a caboose with three freight cars attached standing on the track near where the boy attempted to cross. Just before the boy attempted to cross the track another car was pushed or kicked against these cars and caboose which were standing on the track, and caused them to' back down the track. While thus moving, the caboose struck the plaintiff, Willie Sparks, and the result was that his foot was crushed to such an extent that it was necessary to amputate it.
The jury returned a verdict in favor of plaintiff, and assessed his damages at $10,000. Judgment was rendered against the company for that amount, and it appealed.
It is' said that the plaintiff, Willie Sparks, was guilty of contributory negligence, but that question was submitted to the jury under proper instructions, and, considering that plaintiff was at the time of the accident under ten years of age, we think that the circumstances are sufficient to support the finding of the jury.* It has been frequently held that a child is not required to exercise the same capacity for self-preservation and the same prudence that an adult should exercise under like circumstances. You can reasonably expect of a boy between nine and ten years of age only that degree of care and prudence that a boy of that age or of his degree of intelligence should exercise. What would be ordinary care for such a boy might be culpable negligence in an adult. Dowling v. Allen, 88 Mo. 293" date_filed="1885-10-15" court="Mo." case_name="Dowling v. Gerard B. Allen & Co.">88 Mo. 293; Ridenhour v. Kansas City Ry. Co., 102 Mo. 283; Railroad Company v. Gladmon, 15 Wall. (U. S.) 401; Lynch v. Smith, 104 Mass. 52" date_filed="1870-01-15" court="Mass." case_name="Lynch v. Smith">104 Mass. 52; 7 Am. & Eng. Enc. Law (2 Ed.), 405.
The evidence tends to show that the defendant company was guilty of negligence in allowing these cars to be pushed or kicked along its track through a populous town without any lookout on them to guard against accidents to persons and property, and we think the question as to whether the plaintiff was guilty of contributory negligence, in failing to look - up and down the track as he walked upon it was a question for the jury.
An instruction of the court told the jury that contributory negligence was an affirmative defense, and that the burden of proof was on defendants to establish it “by a preponderance of the testimony to the satisfaction of the jury.” Counsel for de-É fendant contends that this instruction was erroneous, for the reason that, while usually the burden is on the defendant to .show contributory negligence, yet it is sufficient if shown by the evidence introduced by plaintiff; and further that the use "of the word “satisfactory” was improper, and rendered the instruction erroneous and prejudicial. But it is evident, when the whole charge is considered, that the court did not intend by this instruction to convey the idea that the defendant must introduce evidence to show contributory negligence, even though it was shown by the evidence of plaintiff. It is equally plain, we think, that the court did not, by saying that contributory negligence must be “established by a preponderance of the testimony to the satisfaction of the jury,” intend to require more than preponderance of the evidence. In fact, the instruction says that such defense must be shown “by a preponderance of testimony.” The use of the word satisfy or satisfaction in such connection has been criticised as inaccurate, and there was no need to use it to express the idea intended. But no special objection was made to this instruction on the grounds mentioned, and it is too late to raise such formal objections on appeal. Brinkley Car Works & Mfg. Co. v. Cooper, 75 Ark. 325" date_filed="1905-05-06" court="Ark." case_name="Brinkley Car Works & Manufacturing Co. v. Cooper">75 Ark. 325; Thomas v. State, 74 Ark. 436; St. Louis, I. M. & Sou. Ry. Co. v. Norton, 71 Ark. 317; Aetna Ins. Co. v. Ward, 140 U.S. 76" date_filed="1891-04-27" court="SCOTUS" case_name="Aetna Life Ins. Co. v. Ward">140 U. S. 76; Wells v. Higgins, 132 N. J. 459.
There was no evidence in this case that the plaintiff attempted to jump upon or ride this car, and the evidence offered by defendant that he had previously been in the habit of. riding cars was properly rejected.
It was proper to show that this railway track was in a populous town, and that pedestrians, both young and old, frequently used it as a passway, to show the necessity for increased vigilance in keeping a lookout when cars were to be pushed or backed along the track at that place.
The damages allowed were liberal, but, considering the fact that plaintiff, a young and bright boy, lost his foot, that he suffered greatly, We are not able to say that the damages assessed were excessive.
Finding no error, judgment affirmed.