Atchison, T. & S.F. Ry. Co. v. Hardy, 1,125.

• Decision Date: 03 April 1899
• Docket Number: 1,125.
• Citation: 94 F. 294
• Parties: ATCHISON, T. & S.F. RY. CO. v. HARDY.
• Court: U.S. Court of Appeals — Eighth Circuit

94 F. 294

ATCHISON, T. & S.F. RY. CO. v. HARDY.

No. 1,125.

United States Court of Appeals, Eighth Circuit.

April 3, 1899

Henry A. Dubbs (Charles E. Gast, on the brief), for plaintiff in error.

E. C Glenn (W. B. Gobin, on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge.

Alva Hardy, the defendant in error, suffered the loss of his right foot and a part of his right leg by being run over in the town of Rocky Ford, in the state of Colorado, by a train of the Atchison, Topeka & Santa Fe Railway Company, the plaintiff in error, on the morning of July 16, 1897. On this account he brought the present suit by Richard T. Hardy and Annie E. Hardy, his parents, acting as his next friends, and recovered a judgment against the railway company for $1,000. The accident occurred near the place where the main street of the town of Rocky Ford crosses the defendant company's railroad track, which is a point about 50 feet from the company's railroad or depot; and the plaintiff charged that the train which ran over him was moving at an unlawful rate of speed,-- some 35 miles per hour,-- in violation of a city ordinance, and that it was not a regular train, but a special. The case hinges on the plea of contributory negligence; the contention on the part of the railway company being that the boy was on its track outside of the limits of Main street, where he had no right to be, that he went on its track without looking to see if a train was approaching, and that he was hurt by his own carelessness. On this ground it is insisted that the trial judge should have directed a verdict in its favor, and not submitted the case to the arbitrament of a jury. The trial court instructed the jury in substance, that the sole question for them to consider respecting the charge of negligence against the railway company was whether the train was moving at a dangerous or negligent rate of speed, considering the locality, and that in no other respect did the evidence tend to show that the company had been negligent or guilty of a violation of any duty. On the other hand, it charged with respect to the boy's conduct that, if he had been a person of mature years, he would as a matter of law, be chargeable with contributory negligence-- First, because the evidence showed that he went on the defendant's track without looking to see if a train was coming; and, second, because he was apparently on the railroad track at a place outside of the traveled street where he had no right to be. The learned judge of the trial court was of the opinion, however, that he had no right to withdraw the case from the consideration of the jury on the ground last indicated, because the plaintiff was not of full age, and that the jury had a right to say whether, in view of his minority, his conduct was excusable, and whether he should recover. We quote an excerpt from the charge which explains fully the views of the trial judge:

'So it is clear upon the testimony that, from the time he left the store and came to the track, he could have seen the train, if he had looked for it. He did not look for it. If he were a man, the law would charge upon him the duty of looking. No man can go upon a railroad track, when he can see an approaching train, and afterwards claim that he is not in fault, there being a train approaching which he might have seen by looking. But he is a boy; that is to say, he is somewhat of a boy,-- it is said, fourteen years old a few months before the accident. Counsel for the defendant demand that I shall say to you that, because he was fourteen years old,-- just past that age,--therefore he must be charged with the responsibility of a man. I doubt whether that can be so; that is to say, I do not doubt it can be so if you say so. If, after looking at him and observing him, you say he has the intelligence and prudence of a man, then he cannot recover in this action, because he went upon the track without looking. More than that, he got off the street, and got to a place which was east of the street, a place in which he

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