Sykes v. Lawlor

49 Cal. 236 | Cal. | 1874

By the Court, Crockett, J.:

The weight of authority in England is to the effect that in an action by a parent for injuries to his minor child under his care, the gravamen of the action is the loss of service; as incidental to which he may recover the expense of nursing and healing the child. But if the child' be of such tender years that it was incapable of rendering any service whatever, there could be no recovery, even for the expenses. (Addison on Torts, 902.) But in this country a more liberal rule has been adopted; and the best considered cases hold that inasmuch as it is a duty enjoined by the law of the land as well as by the laws of nature, upon the parent, to care for and heal his injured minor child, he who willfully or negligently occasioned the injury should be held responsible for the expenses incurred, without reference to the capacity of the child to render service to the parents. In the case of Dennis v. Clarke (2 Cush. 347), the Supreme Court of Massachusetts, in an able and exhaustive opinion, examined the authorities, and arrived at the conclusion above stated. We are fully satisfied with the reasoning of that case, and think the rule it establishes is founded in reason and justice. (See also Karr v. Parks, 44 Cal. 46; Schouler’s Domestic Relations, 251-2.)

On the question whether the injury was attributable wholly or at all to the negligence of the driver of the team, the evidence is not very satisfactory. The accident occured at or near the crossing of Harrison and Dora streets, while a number of children were near the crossing on their way to school. While turning from Harrison into Dora (a very narrow street), -it was the duty of the driver to proceed at a slow pace, and with considerable circumspection. The evidence is conflicting as to the rate of speed at which the team was going, at and immediately preceding the time of the accident. Some of the witnesses describe it as but little faster than a walk, while others testify it was considerably greater. There is also a conflict in the evidence as to whether the child was knocked down by the team immediately on the crossing or some feet from it, in Dora street. One witness testifies that he was very near the child, and witnessed the whole occurrence, and that she ran against one of the horses in attempting to cross the street in front of the team, after it had passed the crossing some feet. Another witness (Miss Ciprico) testifies that, “when the horses struck the child she • was right at the crossing of Harrison and Dora streets, and about half of the way on the crossing.” Miss Blethen testified: “I saw the child perhaps about a foot or two from the pole of the wagon, between the horses’’ heads. * * * When I saw her between the horses’ heads she was still standing and looking toward us. She evidently did not see the wagon, and did not know anything about it.” It was for the Court below to decide upon the credibility of the witnesses, and we cannot disturb the finding in respect to negligence, on the ground that it was not justified by the evidence. Considering the perils to which pedestrians are constantly exposed, from careless, reckless driving in the streets of cities, we are not inclined to relax the rule which exacts from the drivers of vehicles and. persons on horseback the greatest circumspection in passing along crowded thoroughfares.

Order and judgment affirmed. Remittitur forthwith.

Neither Mr. Chief Justice Wallace nor Mr. Justice Rhodes expressed an opinion.