Indianapolis, P.&C.R. Co. v. Pitzer

• Decision Date: 14 April 1886
• Citation: 109 Ind. 179,6 N.E. 310
• Court: Indiana Supreme Court
• Parties: Indianapolis, P. & C. R. Co. v. Pitzer.

109 Ind. 179

6 N.E. 310

Indianapolis, P. & C. R. Co.

v.Pitzer.¹

Supreme Court of Indiana.

April 14, 1886.

Appeal from Howard circuit court.

C. B. & W. V. Stuart, for appellant.

Blacklidge & Bro. and John W. Kern, for appellee.

Elliott, J.

The material allegations of the appellee's complaint are these: That the son of the appellee, aged seven years and two months, without the fault or negligence of his parents, wandered to the depot of the appellant, in the city of Kokomo, and was carelessly and negligently permitted to get on one of its passenger trains which stopped for five minutes at that depot; that the child was carried to Jackson station; that the conductor of the appellant's train “wrongfully, carelessly, and negligently put the child, Arthur Pitzer, off at that station, without leaving him in charge of any person, or giving any one instructions concerning him;” that the conductor well knew that Arthur Pitzer had been carried to that point through the carelessness and negligence of the agents and employes of the defendant; “that the child having been thus wrongfully put off the train at Jackson station, without being placed under the control or in the charge of any person, and without the fault or neglect of his parents, was casually upon the track of the defendant, at a point on the line thereof at or near where a highway crossed it, about one and one-fourth miles north of Jackson station;” that at that point, between the hours of 4 and 5 o'clock p. m., he was run over and killed by a freight train of the appellant; that, although he was on the track at a place where he could be seen by the trainmen for a distance of three-fourths of a mile, no signals of warning were given, but without such signals, and without any effort to stop the train, the employes of the defendant ran the train upon him, although there was an ascending grade, and the train could easily have been stopped.

We regard it as quite clear that the appellant was not in fault for allowing the child to get upon the train. If, in any event, a railroad company could be made liable for carelessly permitting a person, young or old, to get upon one of its passenger trains, it cannot be made liable in such a case as that stated by the complaint. It does not appear that the child was not, so far at least as the servants of the appellant could observe, in company with adult persons who entered the train at the city of Kokomo; nor does it appear that the appellant's employes knew, or could have known, that he had no right to take passage. We suppose it to be perfectly clear that a child of tender years may enter a railroad train without subjecting the company to the charge of negligence, and that the mere failure to keep a child off the train will not supply a foundation for an action. We know of no principle that requires railroad companies to keep watch to prevent persons, young or old, from entering their passenger trains at a regular station. If, in any case of this character, a railroad company can be made liable for allowing a child to enter one of its passenger trains, it can only be a case where facts are stated showing that it was wrong to permit the child to get upon the train, and here there are no such facts pleaded. We conclude, therefore, that the mere fact that the child was permitted to enter the passenger train creates no cause of action against the appellant, for he entered the train as an intruder. Intruders, infants or adults, cannot, as a general rule, impose any duties upon the person on whose property they intrude. Lary v. Cleveland, etc., Co., 78 Ind. 323;Everhart v. Terre Haute, etc., Co., Id. 292; State v. Harris, 89 Ind. 363, see page 366; Nave v. Flack, 90 Ind. 205, see page 206; Evansville, etc., Co. v. Griffin, 100 Ind. 221;Hestonville Passenger Co. v. Connell, 88 Pa. St. 520; Morrissey v. Eastern, etc., Co., 126 Mass. 377; S. C. 30 Amer. Rep. 686; Gavin v. City, etc., 97 Ill. 66; S. C. 37 Amer. Rep. 99; McAlpin v. Powell, 70 N. Y. 126; S. C. 26 Amer. Rep. 555; Snyder v. Hannibal, etc., Co., 60 Mo. 413;Zoebisch v. Tarbell, 10 Allen, 385;Brown v. European, etc., Co., 58 Me. 384; Baltimore, etc., Co. v. Schwindling, 101 Pa. St. 258; S. C. 47 Amer. Rep. 706; Atchison, etc., Co. v. Flinn, 24 Kan. 627.

These cases are to be discriminated from those where one places dangerous agencies where trespassing children are likely to be injured by them, for here the company did what it was perfectly lawful for it to do, and that was, run a passenger train in the manner in which such trains are usually managed. The class of cases to which we refer, although numerous, have no application here. Of this class the following are representative cases: Binford v. Johnston, 82 Ind. 426;Dixon v. Bell, Maule & S. 198; Lynch v. Nurdin, 1 Q. B. 29; Carter v. Towne, 98 Mass. 567;Railroad Co. v. Stout, 17 Wall. 657;Bird v. Holbrook, 4 Bing. 628; Birge v. Gardiner, 19 Conn. 507; Keffe v. Milwaukee, etc., R. Co., 21 Minn. 207; S. C. 18 Amer. Rep. 393; Nagel v. Missouri, etc., Co., 75 Mo. 653;Evansich v. Gulf, etc., Co., 57 Tex. 126; S. C. 44 Amer. Rep. 586; Townley v. Chicago, etc., Co., 53 Wis. 626;S. C. 11 N. W. Rep. 55;Bransom's Adm'r v. Labrot, 81 Ky. 638; S. C. 50 Amer. Rep. 193; Kansas Co. v. Fitzsimmons, 22 Kan. 686; S. C. 31 Amer. Rep. 203.

The cases last cited all recognize the rule that children of tender years are not to be treated as persons of mature years. This is a reasonable and humane rule, and any other would be a cruel reproach to the law; but the law merits no such reproach, for throughout all its branches, whether of tort or contract, there runs, like the marking red cord of the British navy, a line distinguishing children of years too few to have judgment or discretion from those old enough to possess and exercise those faculties. This is a doctrine taught by every man's experience, and sanctioned by our law. A departure from it would shock every one's sense of justice and humanity. Cases very closely resembling the present recognize and enforce this distinction, and without substantial diversity of opinion the general principle is recognized, although there is not entire uniformity in its application. Dr. Wharton, in discussing the general subject, says:

“The protection of the helpless from spoliation is one of the cardinal duties of Christian civilization, and when those so helpless are young children this duty is aided both by the instincts of nature and the true policy of the state.” Whart. Neg. § 313.

Mr. Thompson says:

“The general rule is that, where the injury is caused by the actual negligence of the company, the child can be expected to use discretion only in respect to its years, and the total incapacity of a child to know the danger and avoid it shields it from responsibility for its acts. Greater care must be exercised in reference to children than to adults.” 1 Thomp. Neg. 452.

Another author says:

“When the trespasser is an infant, the railway company, on the one hand, is held bound to exercise a higher degree of care and caution than is required as to adults; and the infant, on the other hand, is not required to exercise a discretion and prudence beyond its years, but only that measure of sense and judgment which it may reasonably be expected to possess in view of its age.” Beach, Neg. 211.

Cases in great numbers might be collected supporting the general doctrine declared by these authors, and applying it to almost every conceivable phase of the question, but we deem it unnecessary to cite these cases, as there is little, if any, diversity of opinion.

The principle of which we are speaking supplies the initial proposition for this discussion, since it enables us to declare that the conductor was bound to use much greater care in dealing with the child of seven years than he would have been required to exercise respecting an older person. The care exercised by him was not such as, under the circumstances, it was his duty to exercise. Expelling from the train, miles from its home, a child so young as to be incapable of taking care of itself, or of comprehending the danger of its situation, without asking any one to give it attention, or look after its safety, was not such a care as humanity and justice require; but we do not place our decision upon this point alone, for we think that the conductor's want of care must be taken in conjunction with the wrong of the engineer and those in charge of the freight train in negligently failing to stop the train when it was within their power to do so before it ran upon the child. These two leading facts, when combined, make a case establishing negligence on the part of the appellant, and excluding contributory negligence on the part of the child. We cannot undertake to comment upon all of the many cases which declare principles that rule such cases as this, but we deem it not unprofitable to refer to some of the decisions which light our way to a just conclusion.

In Louisville, etc., Co. v. Sullivan, 81 Ky. 624, a man, so drunk as to be helpless mentally and physically, was put off a railroad train on a cold winter night by a conductor who knew his condition. The passenger so ejected from the train was severely frozen, and in a very strongly reasoned opinion the company was held liable. The doctrine of this case is perhaps an extreme one, and to be carefully limited, yet it is not easy to answer the reasoning of the court, or meet the force of the authorities cited.

In our own case of McClelland v. Louisville, etc., Co., 94 Ind. 277, the company was held to be not responsible for the killing of a drunken man who was put off the train, and wandered back upon the track and was killed; but the theory upon which that case was decided hardly meets the question as presented in this case or in Louisville, etc., Co. v. Sullivan, for the facts are not the same in the two cases.

The court, in the case of Atchison, etc., Co. v. Weber, 33 Kan. 543, S. C. 52...