19 S.E. 730 (N.C. 1894), Bottoms v. Seaboard & R.R.

Citation19 S.E. 730, 114 N.C. 699
Opinion JudgeSHEPHERD, C.J. CLARK, J.
Party NameBOTTOMS v. SEABOARD & R. R. CO.
AttorneyW. H. Day, for appellant. E. C. Smith, for appellee.
Case DateMay 09, 1894
CourtUnited States State Supreme Court of North Carolina

Page 730

19 S.E. 730 (N.C. 1894)

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

Page 731

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...

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33 practice notes
  • 70 F. 679 (D.Ind. 1895), Berry v. Lake Erie & W.R. Co.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (7th Circuit)
    • December 5, 1895
    ...Sable, 85 Mich. 280, 48 N.W. 584; in Nebraska, in Huff v. Ames, 16 Neb. 139, 19 N.W. 623; in North Carolina, in Bottoms v. Railroad Co., 114 N.C. 699, 19 S.E. 730; in Texas, in Allen v. Railway Co. (Tex. Civ. App.) 27 S.W. 943; in New Hampshire, in Bisaillon v. Blood, 64 N.H. 565, 15 A. 147......
  • 98 N.W. 219 (Wis. 1904), Busse v. Rogers
    • United States
    • Wisconsin United States State Supreme Court of Wisconsin
    • February 2, 1904
    ...v. Orr, 83 Pa. 332; Gillespie v. McGowan, 100 Pa. 44; Rogers v. Lees, 140 Pa. 475, 12 L. R. A. 216; Bottoms v. Seaboard & R. R. Co. 114 N.C. 699, 19 S.E. 730. OPINION Page 220 [120 Wis. 449] WINSLOW, J. A number of detail errors are alleged, which will be considered before proceeding to......
  • 99 P. 91 (Idaho 1908), Anderson v. Great Northern Railway Co.
    • United States
    • Idaho United States State Supreme Court of Idaho
    • December 7, 1908
    ...27 S.W. 932; Indianapolis etc. R. Co. v. Pitzer, 109 Ind. 179, 58 Am. Rep. 387, 6 N.E. 310, 10 N.E. 70; Bottoms v. Seaboard & R. Co., 114 N.C. 699, 41 Am. St. Rep. 799, 19 S.E. 730, 25 L. R. A. 784; 3 Elliott on Railroads, secs. 1257a, 1261; Walters v. Chicago R. I. & P. R. Co., 41 ......
  • 62 N.E. 658 (Ind.App. 1902), 3,799, Citizens Street Railroad Co. v. Hamer
    • United States
    • Indiana Court of Appeals of Indiana
    • January 31, 1902
    ...C. C. A. 106, 95 F. 370; Western, etc., R. Co. v. Young, 81 Ga. 397, 416, 7 S.E. 912, 12 Am. St. 325; Bottoms v. Seaboard, etc., R. Co., 114 N.C. 699, 712, 19 S.E. 730, 25 L. R. A. 784, 41 Am. St. 799. The supreme court of Oregon in a case where the facts were much more favorable to the def......
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33 cases
  • 70 F. 679 (D.Ind. 1895), Berry v. Lake Erie & W.R. Co.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (7th Circuit)
    • December 5, 1895
    ...Sable, 85 Mich. 280, 48 N.W. 584; in Nebraska, in Huff v. Ames, 16 Neb. 139, 19 N.W. 623; in North Carolina, in Bottoms v. Railroad Co., 114 N.C. 699, 19 S.E. 730; in Texas, in Allen v. Railway Co. (Tex. Civ. App.) 27 S.W. 943; in New Hampshire, in Bisaillon v. Blood, 64 N.H. 565, 15 A. 147......
  • 98 N.W. 219 (Wis. 1904), Busse v. Rogers
    • United States
    • Wisconsin United States State Supreme Court of Wisconsin
    • February 2, 1904
    ...v. Orr, 83 Pa. 332; Gillespie v. McGowan, 100 Pa. 44; Rogers v. Lees, 140 Pa. 475, 12 L. R. A. 216; Bottoms v. Seaboard & R. R. Co. 114 N.C. 699, 19 S.E. 730. OPINION Page 220 [120 Wis. 449] WINSLOW, J. A number of detail errors are alleged, which will be considered before proceeding to......
  • 99 P. 91 (Idaho 1908), Anderson v. Great Northern Railway Co.
    • United States
    • Idaho United States State Supreme Court of Idaho
    • December 7, 1908
    ...27 S.W. 932; Indianapolis etc. R. Co. v. Pitzer, 109 Ind. 179, 58 Am. Rep. 387, 6 N.E. 310, 10 N.E. 70; Bottoms v. Seaboard & R. Co., 114 N.C. 699, 41 Am. St. Rep. 799, 19 S.E. 730, 25 L. R. A. 784; 3 Elliott on Railroads, secs. 1257a, 1261; Walters v. Chicago R. I. & P. R. Co., 41 ......
  • 62 N.E. 658 (Ind.App. 1902), 3,799, Citizens Street Railroad Co. v. Hamer
    • United States
    • Indiana Court of Appeals of Indiana
    • January 31, 1902
    ...C. C. A. 106, 95 F. 370; Western, etc., R. Co. v. Young, 81 Ga. 397, 416, 7 S.E. 912, 12 Am. St. 325; Bottoms v. Seaboard, etc., R. Co., 114 N.C. 699, 712, 19 S.E. 730, 25 L. R. A. 784, 41 Am. St. 799. The supreme court of Oregon in a case where the facts were much more favorable to the def......
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