Baker v. Seabd. Air Line Ry

• Decision Date: 05 May 1909
• Court: North Carolina Supreme Court
• Parties: BAKER. v. SEABOARD AIR LINE RY.

64 S.E. 506

(150 N. C. 562)

BAKER.

v.SEABOARD AIR LINE RY.

Supreme Court of North Carolina.

May 5, 1909.

1. Railroads (§ 278^*)—Death of Infant Licensee on Work Train — Contributory Negligence.

Where a boy of 14 was permitted to ride on the rear flat car of a work train, and, while it was running at 30 miles an hour, suddenly and voluntarily jumped off and was killed, he was guilty of contributory negligence barring recovery for his death if he can be held responsible in law for his conduct.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 898, 899; Dec. Dig. § 278.*]

2. Railroads (§ 278*) — Death in Jumping from Train — Responsibility of Infant Licensee.

The responsibility of a boy of 14 killed in jumping from a rapidly moving train on which he was allowed to ride is not to be judged by the length of his experience with railroads.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 899; Dec. Dig. § 278.*]

3. Negligence (§ 122*)—Contributory Negligence—Presumption as to Infant's Ca-PACITY.

An infant of 14 is presumed to have sufficient capacity to be sensible of danger and power to avoid it. and this presumption stands till rebutted by clear proof of absence of the discretion usual to that age.

[Ed. Note.—For other cases, see Negligence, Cent. Dig. § 223; Dec. Dig. § 122.*]

4. Negligence (§ 136*)—Contributory Negligence—Commencement of Infant's Responsibility—Question of Law or Fact.

At what age an infant is presumed to have sufficient capacity to be sensible of danger andpower to avoid it is not a question of fact, but of law, and the inquiry as to at what age his responsibility for negligence must be presumed to commence cannot be referred to the jury.

[Ed. Note.—For other cases, see Negligence, Cent. Dig. § 348; Dec. Dig. § 136.*]

5. Negligence (§ 85^2-*)—Contributory Negligence—Care and Prudence Required of Infants.

An infant is held to the care and prudence usual among children of the same age, and if directly injured by his own act, while negligence of another is only such as to expose him to possibility of injury, he cannot recover.

[Ed. Note.—For other cases, see Negligence, Cent. Dig. § 123; Dec. Dig. § 85.*]

6. Negligence (§ 136*)—Contributory Negligence—Discretion of Infant—Weight of Rebuttal Evidence — Question for Jury.

The weight of evidence to rebut the presumption of discreet judgment of an infant over 14 years of age is for the jury.

[Ed. Note.—For other cases, see Negligence, Cent. Dig. § 348; Dec. Dig. § 136.*]

7. Railroads (§ 278*)—Death of Infant Licensee—Motive in Jumping from Train— Materiality.

In determining liability for the death of a boy who_ recklessly jumped from a rapidly moving train on which he was permitted to ride, his motive in so doing is immaterial.

[Ed. Note.—For other cases, see Railroads, Dec. Dig. § 278.*]

Appeal from Superior Court, Anson County; Long, Judge.

Action by C. A. Baker, administrator of Carl Baker, deceased, against the Seaboard Air Line Railway. From a judgment for plaintiff, defendant appeals. Reversed.

John D. Shaw and Murray Allen, for appellant.

Robinson & Caudle and D. Medlin, for appellee.

BROWN, J. The defendant in apt time entered motions to nonsuit upon the ground that upon plaintiff's own evidence he is not entitled to recover: (1) Because no negligence is shown; (2) because the intestate was guilty of contributory negligence. We are all of opinion that this last contention is so plainly with the defendant that it is unnecessary to consider the first.

These facts appear from plaintiff's evidence: His son, Carl, 15 years of age lacking one month, was killed by jumping from defendant's work train while running about 30 miles an hour. The train consisted of flat cars, equipped with machinery for ditching. Witnesses for plaintiff, who testify concerning the occurrence, say that on the afternoon of August 15, 1906, the boy Carl and his younger brother, Luther Baker, came up to the train from their home, about three-quarters of a mile away. When they arrived at the train, Herman Shannon, another boy, was standing on a flat car. Carl Baker asked the conductor if he could ride, and the conductor told him to get on the rear end of the train on a flat car out of the way. Carl then climbed up on the flat car and pulled his younger brother up with him. The train continued the work of ditching. The boys remained on the car an hour. It became necessary for the train to take a siding to let another train pass going towards Monroe. After this train passed, the ditching train pulled out for Waxhaw, two miles away. When the train had gotten up good speed and was running at rate of about 30 miles an hour, Carl Baker got up from where he was sitting on a scantling and sat down on the rear of the flat car and jumped off between the rails. Herman Shannon, who was on the car with plaintiff's intestate, testified that he remained on the train in the position occupied by himself and Carl Baker until it reached Waxhaw, without Injury to himself. This witness was nearly a year younger than Carl Baker. According to the testimony of the plaintiff, his son Carl was an "intelligent, smart boy, and of average size for his age, " and for two years had been residing within three-quarters of a mile from the railroad.

It is settled beyond controversy by the decisions of this and all other courts in this country that the act of the intestate in jumping off the rapidly moving train of defendant was one of such recklessness as will bar recovery, if the intestate is held in law responsible for his conduct. Owens v. Railroad, 147 N. C. 357, 61 S. E. 198; Morrow v. Railroad, 134 N. C. 92, 46 S. E. 12. The learned counsel for plaintiff, Mr. Caudle, in an able and elaborate argument, endeavored to show that the intestate, on account of his age, should not be held responsible for his act; but an examination of the authorities in this and other states discloses that they are overwhelmingly against him. The case is not to be judged by the length of experience of the boy Carl with railroads, although the evidence discloses that for two years he had resided near one, and that his 12 year old brother, Luther, is by no means a stranger to them. Carl wore long trousers, was well grown, bright, smart, and intelligent. He was not an infant of tender years, and, in the absence of evidence to the contrary, had the capacity of an adult to appreciate danger. He was three years beyond the age at which he could be employed in a factory, around dangerous machinery, without violating the child labor law, and was old enough to be held responsible for a violation of the criminal law of the land.

An infant of the age of 14 years is presumed to have sufficient capacity to be sensible of danger and to have power to avoid it, and this presumption will stand until rebutted by clear proof of the absence of such discretion as is usual with infants of that age. At what age this presumption arises is not a question of fact, but one of law. The inquiry at what age must an in-fant's responsibility for negligence be presumed to commence cannot be answered by referring it to a jury. That would furnish us with no rule whatever. It would simply produce a shifting standard, according to the sympathies or prejudices of those who composed each particular jury. One jury might fix the age at 14, and another at 18, and another at 20. The responsibilities of anfants are clearly defined by text-writers and courts. At common law 14 was the age of discretion in males and 12 in females. At 14 an infant could choose a guardian and contract a valid marriage. After 7 an infant may commit a felony, although there is a presumption in his favor, which may, however, be rebutted; but after 14 an infant is held to the same responsibility for crime as an adult. Sharswood's Blackstone, vol. 1, pp. 20, 435, 404. Inasmuch as an infant, after 14, may select a guardian, contract marriage, is capable of harboring malice and of committing murder, it is no great imposition on him to hold him responsible for his own negligence. In the case of Tucker v. Railroad, 124 N. Y. 308, 26 N. E. 916, 21 Am. St. Rep. 670, the Court of Appeals of New York says: "The question at what age an infant's responsibility for negligence may be presumed to commence is not one of fact, but of law. In the absence of evidence tending to show that a boy 12 years of age was not qualified to understand the danger and appreciate the necessity for observing that degree of caution in crossing a railroad track an adult would, he must be deemed sui juris and chargeable with the same measure of caution as an adult." To same effect is Nagle v. Railroad, 88 Pa. 35, 32 Am. Rep. 413. That infants are to be held for the consequences of their own negligence in actions for injuries to them has long been settled by this and other courts and so declared by text-writers. Shearman & Red. Neg. § 49; Wharton on Neg. 314; Manly v. Railroad, 74 N. C. 655; Murray v. Railroad, 93 N. C. 94; Railroad v. Gladmon, 15 Wall. 401, 21 L. Ed. 114; Railroad v. Stout, 17 Wall. 657, 21 L. Ed. 745. From all these and other approved authorities the principle is deduced that an...