Bottoms v. Seaboard & R.R.

• Decision Date: 09 May 1894
• Parties: BOTTOMS v. SEABOARD & R. R. CO.
• Court: North Carolina Supreme Court

19 S.E. 730

114 N.C. 699

BOTTOMS v. SEABOARD & R. R. CO.

Supreme Court of North Carolina

May 9, 1894

Appeal from superior court, Northampton county; W. A. Hoke, Judge.

Action by Claudius Bottoms, by his next friend, Turner Bottoms against the Seaboard & Roanoke Railroad Company, for personal injuries sustained while on defendant's track. From a judgment for plaintiff, defendant appeals. Affirmed.

W. H Day, for appellant.

E. C Smith, for appellee.

SHEPHERD C.J.

It is unquestionably true, as argued by counsel, that in order to maintain an action for negligence, the plaintiff must not only show the existence of a duty on the part of the defendant, but he must also show that the duty is due to him. Emry v. Water-Power Co., 111 N.C. 94, 16 S.E. 18. It has been decided by this court that it is the duty of an engineer, in running a railroad train, to exercise ordinary care, by keeping a lookout on the track, in order to discover and avoid any obstructions that may be encountered thereon. This duty is due to passengers; and as a general rule the duty is likewise due to the owner of cattle running at large to the owner of other property which, under certain circumstances, may be on the track; and also, as a general rule, to persons who may be on the same at places other than crossings. It has also been decided in many cases, and may be regarded as perfectly well settled, that the failure to exercise such ordinary care, in discovering persons or property in time to avoid a collision, cannot, except in case of cattle running at large, be made the subject of a recovery, where the plaintiff's negligence is the proximate cause of the injury. In the present case the jury have found, under proper instructions of the court, that the plaintiff was injured by reason of the negligence of defendant. The plaintiff is therefore entitled to recover, unless he was guilty of negligence, as above stated. The real questions presented, therefore, are whether the plaintiff was of sufficient age and discretion to be capable of contributory negligence, and, if not so capable, whether the negligence of the parent can be imputed to him.

It is admitted by the pleadings that the plaintiff was at the time of the accident "an infant of tender years," who had been permitted by its mother "to stray and wander" on the track of the defendant. From the language of the admission, we would, if it were necessary for the purposes of this decision, be well warranted in holding that, prima facie, the plaintiff was of such a tender age as to be incapable of negligence. Apart from this, however, it is established by uncontradicted testimony, and also admitted by counsel for the defendant, that the plaintiff, at the time of the accident, was in fact but 22 months old. In several of the states, it has been held that an infant of that age is, as a matter of law, incapable of contributory negligence (2 Thomp. Neg. 1181), while in others it is held, in analogy to the rule of the common law as to criminal responsibility, that an infant under the age of seven years is also incapable, but that the presumption may be rebutted by testimony, and that the question may be determined by the jury (1 Shear. & R. Neg. § 73, note. Applying either rule to the present case, it is clear that the plaintiff was incapable of contributory negligence, and it must follow that, unless the negligence of his mother can be imputed to him, there is nothing to bar his recovery. Conceding, only for the purposes of this discussion, that the mother was guilty of contributory negligence in going to the well, and leaving her infant child in the house, without closing the door, and also conceding, what is intimated in Manly v. Railroad Co., 74 N.C. 655 (and indeed is well sustained by the authorities), that, if it be contributory negligence, it would defeat an action brought by the parent, we are not prepared to accept the doctrine which obtains in some few jurisdictions, that such negligence can be so imputed to the child as to defeat an action, when brought in its own behalf. As the question has never been passed upon in this state, it may not be inappropriate to quote at length from some of the leading authorities upon the subject:

The imputation of the negligence of parents and guardians to children of tender age is, says Shearman & Redfield on Negligence (volume 1, § 74), an invention of the supreme court of New York in the leading case of Hartfield v. Roper, 21 Wend. 615, and has been followed in many of the decisions of that state, although it is said by these authors to be founded upon a dictum which has only been assumed to be the law by the court of last resort, but never squarely presented to that tribunal for decision. And they further remark that it may well be doubted whether the question has ever been fully argued anywhere, and that the result of their examination of the cases is to satisfy them "that the last of the long series of socalled 'decisions' on this point is, like the first, a mere dictum, uttered without hearing argument and without consideration." Some of the decisions approving the doctrine are based upon the ground that the parent must, in law, be deemed the agent of the child, while others put it upon the ground that the child is identified with its parent or guardian,--"a legal fiction which led to the famous and now exploded decision of Thorogood v. Bryan, 8 C. B. 116," recently overruled by the English appellate court in The Bernina, L. R. 12 Prob. Div. 58; 1 Shear. & R. Neg. §§ 66-75. In reviewing the case of Hartfield v. Roper, supra, Mr. Beach says that the doctrine, as applied to children too young to exercise discretion, is an anomaly, and in striking contrast with the case of a donkey which is carelessly exposed in the highway, and negligently run down and injured, and also with the case of oysters carelessly placed in the bed of a river, and injured by the negligent operation of a vessel, in both of which cases actions have been maintained. And he forcibly observes that, under the principle referred to, "the child, were he an ass or an oyster, would secure a protection which is denied him as a human being of tender years." This author, in his examination of the doctrine, remarks as follows: "It is not true that an infant is not sui juris. In the sense of being entitled to maintain an action for his own benefit, he is sui juris. As far as his right of action is concerned, he is in no respect the chattel of his father. *** The judgment [when suing by guardian or next friend], if any is recovered, is the property of the minor. It is recovered to his sole use. It is an entirely false assumption, in Hartfield v. Roper, that the parent or guardian may recover heavy verdicts for their own misconduct. Again, it is assumed in that opinion that an infant injured by the joint negligence of his parent and a third person can have legal redress against the parent. It is much more fit, says the court, ·that he should look for redress to that guardian.' If this be so,--if the right of the infant be so distinct from the duty of the parent that the relation of parent and child is not an objection to the maintenance of such a suit,--then the whole theory upon which this class of cases rests falls to the ground. Again, it is falsely assumed that the parent is the agent of the child. *** The relation of child and parent is not the relation of principal and agent. Neither is it analogous to it. The child does not appoint his father. He has no control over his acts. He cannot remove him from power, and appoint another in his stead. He has no right of action against him. Every element of agency is wanting. The want of any one of these elements is sufficient to prevent the acts or omissions of the parent from being received as the acts or omissions of the child, upon any analogy drawn from the law of agency. By the common law a child cannot appoint an agent. The authority by which the parent exercises control over the child is therefore an authority derived from the law. It is a principle of law laid down before 'the spacious days of great Elizabeth' that the abuse of an authority derived from the law shall not work harm to, or prejudice the rights of, the person subjected to it. The parent's authority is given for the protection of the child, but the principle of Hartfield v. Roper turns the shield into a sword, and uses it to deprive the child of the very protection arising from the parental relation." Beach, Contrib. Neg. 42. In Wood on Railroads (section 322) it is said: "The doctrine announced in this case [Hartfield v. Roper] has been followed in some jurisdictions; but the modern tendency is to reject it, and to hold the negligent injurer liable for the consequences of his own wrongful act, regardless of the contributory negligence of the child's parent or guardian." Bishop, in his work on Noncontract Law (section 582), emphatically rejects the doctrine, and observes that it is "as flatly in conflict with the established system of the common law as anything possible to be suggested." And an examination of the leading text-books which treat of negligence will disclose that it is also disapproved, as being contrary to principle and reason, as well as the rapidly accumulating weight of authority. Whart. Neg. 312-314; Pol. Torts, 299; Cooley, Torts, 681; 2 Thomp. Neg. 1184; Shear. & R. Neg. supra; Beach, Contrib. Neg. supra.

In Tennessee the doctrine is denounced as being opposed "to every principle of reason and justice" (Whirley v. Whiteman, 1 Head 610); and in Pennsylvania it is declared to be "repulsive to our natural instincts, and repugnant to the condition of that class of persons who have to maintain life by daily toil" (Kay v. Railroad Co., 65 Pa. St. 269).

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