Anderson v. Great Northern Railway Co.

• Citation: 99 P. 91,15 Idaho 513
• Parties: CARL ANDERSON, Respondent, v. GREAT NORTHERN RAILWAY COMPANY, a Corporation, Appellant
• Decision Date: 07 December 1908
• Court: United States State Supreme Court of Idaho

99 P. 91

15 Idaho 513

CARL ANDERSON, Respondent, v. GREAT NORTHERN RAILWAY COMPANY, a Corporation, Appellant

Supreme Court of Idaho

December 7, 1908

ACTION FOR DAMAGES-NEGLIGENCE OF RAILWAY COMPANY-INJURY TO INFANT-MEASURE OF DAMAGES-LOSS OF SOCIETY-DUTY TO TRESPASSERS-DUTY TO CHILD OF TENDER AGE-DEGREE OF CARE TO PREVENT INJURY-ORDINARY CARE RELATIVE TERM-STATEMENTS AS PART OF RES GESTAE-CONTRIBUTORY NEGLIGENCE-LAST CLEAR CHANCE.

1. In an action prosecuted by the heirs or personal representatives of one whose death has been caused by the wrongful or negligent act of another, under the provisions of sec. 4100, Rev. Stat., it is not error for the court to instruct the jury that in considering the amount of pecuniary damages sustained by the plaintiff, they may take into consideration "the degree of intimacy existing between the father and the child and the loss of companionship if such be shown."

2. ID.-In such case it is not error for the court to refuse to strike from the complaint the words "welfare, comfort and happiness" where it is alleged that they are elements entering into the pecuniary damage sustained by the plaintiff.

3. Under the provisions of sec. 4100, the jury is authorized to assess such pecuniary damages "as under all the circumstances of the case may be just," and in such case they are not limited to a precise and specific pecuniary amount measured by the direct evidence given in the case, but are at liberty to take into consideration, guided by the evidence given in the case, the intrinsic probabilities that damages have been sustained by and on account of the loss of bodily care or intellectual culture or moral training which the parent of the deceased had previously supplied or bestowed.

4. A railroad company is bound to exercise a higher degree of care and watchfulness for the detection of trespassers on its track and the prevention of injury to them at points upon its track where people may be expected on the track, or where the roadbed is used constantly by pedestrians, than it is required to observe with reference to trespassers generalluy or at other places and under different circumstances.

5. In an action for damages caused by the negligent conduct of a railroad company running over and killing plaintiff's four-year-old child, it was not error to admit evidence which tended to establish the fact of the existence of a trail along or across the road at or near the place where the accident occurred.

6. ID.-In such a case it is not error for the court to instruct the jury that notwithstanding "the parent may have been guilty of negligence, yet such fact does not relieve the defendant from using reasonable and ordinary care to avoid injuring the child, and the defendant is bound to use and exercise such care, and if the plaintiff's child be in a position of danger, it must be the highest and greatest care and a failure to exercise such care under these circumstances where it may reasonably be inferred that an injury will follow as a result of such failure, amounts to wanton and reckless conduct." Such instruction must be construed in connection with another instruction telling them that this special duty arose on discovery of the child or reasonable opportunity of its discovery.

7. The terms "ordinary care," "utmost care" and "highest degree of care" are relative terms having no fixed and unvarying significance, but are applicable solely to the circumstances and state of facts to which they are applied. What would amount to "ordinary care" in one case would be negligence in another case and what would be the "highest and utmost care" in one case, would amount only to "ordinary care" in another. In a case where the employees of a railway company operating its locomotive see a child of tender years upon its track in front of the train, "ordinary care," under such circumstances, is the highest and greatest degree of care that one can exercise in order to avoid injury to such child, and is such only as a reasonably prudent man would exercise under such circumstances.

8. A child four years old is not guilty of contributory negligence in going upon a railroad track, and when an engineer sees such a child unattended on the track in front of his engine he cannot indulge any presumption whatever that the child will remove from the track before he reaches it. It becomes his duty, under such circumstances, to take immediate action to control his train so that he may stop it before reaching the child if it is possible to do so, and thereby avoid injuring or killing it.

9. In a case where a child four years old was struck and killed by a moving train, and the train did not stop until it had passed about 320 feet beyond the point where it struck the child and the engineer upon stopping the train went back to where the body lay and there made a statement as to having seen the child and what he thought with reference to its actions or movements, and such statement was made within two or three minutes after the injury was inflicted, such statement is a part of the res gestae and is properly admitted in evidence.

10. Evidence in this case examined and held, that there is such a substantial conflict that the appellate court will not disturb the verdict.

11. In an action for damages for the death of a minor child, where contributory negligence is charged by the defendant, if the negligence of the plaintiff preceded the negligence of the defendant, ant, and the accident might have been prevented by the exercise of ordinary care on the part of the defendant, notwithstanding plaintiff's negligence, then, and in that case, the defendant is bound to exercise such care, and a failure to do so is actionable.

(Syllabus by the court.)

APPEAL from the District Court of the First Judicial District for Bonner County. Hon. W. W. Woods, Judge.

Action by the plaintiff for the recovery of damages caused by the defendant in carelessly and negligently running its railway train over plaintiff's minor child and thereby causing its death. Judgment for plaintiff and defendant appealed. Affirmed.

Judgment affirmed. Costs in favor of respondent.

M. J. Gordon and Herman H. Taylor, for Appellant.

Neither the loss of the companionship of the child, nor the damage suffered by plaintiff in his happiness, is anything more than the infliction of mental anguish, nor more than the loss of the society of the child, neither of which is an element of damage. (Hillebrand v. Standard Biscuit Co., 139 Cal. 233, 73 P. 163; Southern Ind. Ry. v. Moore, 34 Ind.App. 154, 72 N.E. 479; Webb v. Denver R. & G. Ry., 7 Utah 17, 24 P. 616; Galveston v. Barbour, 62 Tex. 172, 50 Am. Rep. 519; Wales v. Pacific El. M. Co., 130 Cal. 521, 62 P. 933; Pepper v. Southern Pacific Ry., 105 Cal. 389, 38 P. 974; Holt v. Spokane etc. Ry., 3 Idaho 703, 35 P. 39; Potter v. Chicago etc. R. Co., 21 Wis. 372, 94 Am. Dec. 548; Hedrick v. Ilwaco R. & N. Co. , 4 Wash. 400, 30 P. 714, 54 Am. & Eng. R. R. Cas. 45; 8 Am. & Eng. Ency. of Law, 2d ed., 919; 13 Cyc. 371; Tiffany on Death by Wrongful Act, sec. 158; Lange v. Schoettler, 115 Cal. 388, 47 P. 139.)

The care required in the case of the licensee calls for both reasonable lookout in advance and a reasonable effort to avoid injury after presence is discovered; while with reference to a trespasser, the only duty required is that after such discovery is made the trespasser shall not be wilfully or wantonly injured. (McConkey v. Oregon Ry. & Nav. Co., 35 Wash. 55, 76 P. 526; Curtis v. Oregon Ry. Co., 36 Wash. 55, 78 P. 133; Thomas v. Chicago etc. Ry. Co., 93 Iowa 248, 61 N.W. 967; 3 Elliott on Railroads, sec. 1253-1255; 2 Woods on Railroads, sec. 320.)

The statement alleged to have been made by the engineer was not under the circumstances a part of the res gestae (giving authorities cited in opinion).

The evidence establishes the fact that the want of ordinary care on the part of the plaintiff in this action contributed to and was the proximate cause of the accident. It appears that the parents of this child permitted it to wander from home without any care on their part for its future welfare and safety. If they failed to use ordinary care, they cannot recover for the loss of such child. (Philadelphia etc. R. Co. v. Hummell, 44 Pa. 375, 84 Am. Dec. 457; Philadelphia etc. R. Co. v. Long, 75 Pa. 257; Gillespie v. McGowan, 100 Pa. 144, 45 Am. Rep. 365; Vinnette v. Northern Pacific R. Co., 47 Wash. 320, 91 P. 975; 1 Thompson on Neg., sec. 333; Evansville etc. Ry. Co. v. Wolf, 59 Ind. 89; Senn v. Southern Ry. Co., 124 Mo. 621, 28 S.W. 66.)

B. S. Bennett, and Peter Johnson, for Respondent.

The degree of intimacy and loss of companionship between the plaintiff and the child, or wife, as the case may be, may be shown as affecting pecuniary loss. (Holt v. Spokane & D. Ry. Co., 3 Idaho 103, 35 P. 39, following the case of Beeson v. Green Mountain etc. Min. Co., 57 Cal. 20, and sustained in Munro v. Pacific Rec. Co., 84 Cal. 515, 18 Am. St. Rep. 248, 24 P. 303; Morgan v. Southern Pacific R. Co., 95 Cal. 510, 29 Am. St. Rep. 143, 30 P. 603, 17 L. R. A. 71; Pepper v. Southern P. Ry., 105 Cal. 389, 38 P. 974; Quill v. Southern P. Ry. Co., 140 Cal. 268, 73 P. 991; Dyas v. Southern P. Ry., 140 Cal. 296, 73 P. 972; Ruppel v. United Railroads, 1 Cal.App. 666, 82 P. 1073; Evarts v. Santa Barbara Ry. Co., 3 Cal.App. 712, 86 P. 830.)

"The word 'pecuniary,' in connection with the loss a person sustains by the death of a parent or child, is not construed in any very strict sense, and the tendency is to still greater liberality, and to include every element of injury that may be deemed to have a pecuniary value, though its value may not be susceptible of positive proof, and can only be vaguely estimated." (Tilley v. Hudson Riv....