Wright v. Detroit, G.H. & M. Ry. Co.

• Decision Date: 25 October 1889
• Citation: 77 Mich. 123,43 N.W. 765
• Parties: WRIGHT v. DETROIT, G. H. & M. RY. CO.
• Court: Michigan Supreme Court

43 N.W. 765

77 Mich. 123

WRIGHT v. DETROIT, G. H. & M. RY. CO.

Supreme Court of Michigan

October 25, 1889

Error to circuit court, Shiawassee county.

Action for personal injury, by Israel H. Wright, administrator of the estate of Thomas Wright, deceased, against the Detroit Grand Haven & Milwaukee Railway Company. Judgment for the defendant. Plaintiff brings error.

S S. Miner, (Howard & Gold, of counsel,) for appellant.

Geo H. Jerome, for appellee.

SHERWOOD, C.J.

This action is brought by plaintiff for personal injury resulting in the death of plaintiff's infant intestate. From the record it appears that "plaintiff's intestate, an infant under the age of fourteen years, while riding in a sleigh driven by a boy of the same age, on the highway, was struck by defendant's passing train, and killed, on a crossing." The testimony on the part of the plaintiff tended to show that no warning was given of the approach of the train, and that the view of the train was obstructed. Contributory negligence was urged by defendant on the part of plaintiff's intestate. The cause was tried before a jury in the Shiawassee circuit, and verdict and judgment were given for defendant. The plaintiff now asks for a review of the case. The conflict in the testimony upon the subjects of obstructed view of the train, and want of proper signals were settled against the plaintiff by the verdict. There remains, however, one question, made upon the charge, to be passed upon. It is in the record, and is presented sharply in the plaintiff's brief. Plaintiff's counsel claims and the charge shows, that the circuit judge held the boy who was killed to the same degree of diligence in his efforts to avoid the accident which overtook him as would be required of an adult with greater experience and more matured judgment. In no part of the charge is it intimated that any considerations which would be proper in the one case might not be in the other; and in this, it is insisted by counsel for plaintiff, there is error which was fatal to the defendant's case. It is the claim of plaintiff's counsel that the diligence to be used and required to enable a plaintiff to recover is such diligence as he is able to understand and have the capacity to use; and that it is neither the rule of law nor of good common sense to hold that a boy at 14 years of age has as much ability and capacity to comprehend and avoid the perils and dangers at a railroad crossing as at the age of 45 years; and that a failure to exercise care and caution at the age of 45 years might constitute gross negligence, which at the age of 14 years could not be regarded as negligence in any degree. And plaintiff further contends that when it is sought to hold a minor of not over 14 years of age guilty of contributory negligence, and thereby deprive him of his rights to recover for personal injury received from the wrongful act of another, such negligence should be shown to contain all the elements necessary to place him in the wrong; and in such a case it is the duty of the court, in submitting the facts to the jury, to especially call their attention to the circumstance of his youth, and the rules which should govern them in passing upon the age and inexperience, and what allowance should be made in consequence thereof; and that in such case it is the clear duty of the court to do this, whether the party has the aid of counsel or not, that it is a part of his statutory duty, and not wait to have his attention directed to it by request of party or his counsel, and the omission so to do is error.

I have no doubt of the right of the plaintiff to have the instructions given to the jury he contends for in his position, and the duty of the court in that regard as his counsel claims it to be. And I think, both upon reason and the authority of this court, the rule contended for by Judge Gold in his argument before us in this case is the correct one, and I believe it is safe to say that it is generally supported by the best-considered cases in this country upon the subject. The rule is this: "that the care and discretion to be used by children, and for which they must be held chargeable, must be proportioned to their age and capacity; and, while it must be ordinary care, it is not the ordinary care required of an adult under the same circumstances." Mr. Justice COOLEY in speaking upon the subject of contributory negligence of a minor, says: "Duty can only be predicated of one who has capacity to understand, and ability to perform, it." In the case referred to, the injured boy was riding upon the platform of a street-car. He was but 4 years old, and was in charge of a brother, 13 years of age; and, in speaking of the alleged negligence of the brother, the learned judge further said: "In judging of the measure of responsibility to which the older boy should be held, something more must be considered than merely his age. Some dangers the youngest persons shrink from instinctively, while an appreciation of others only comes from extended observation and experience. A child at four will shudder at the proximity of a precipice; when one of thirteen, to...