Berger v. Charleston Consol. Ry., Gas & Electric Co.

• Decision Date: 13 January 1913
• Parties: BERGER v. CHARLESTON CONSOL. RY., GAS & ELECTRIC CO.
• Court: South Carolina Supreme Court

76 S.E. 1096

93 S.C. 372

BERGER v. CHARLESTON CONSOL. RY., GAS & ELECTRIC CO.

Supreme Court of South Carolina

January 13, 1913

Appeal from Common Pleas Circuit Court of Charleston County; Thos S. Sease, Judge.

"To be officially reported."

Action by Martin K. Berger against the Charleston Consolidated Railway, Gas & Electric Company. Judgment for defendant, and plaintiff appeals. Affirmed.

W. A Holman and Logan & Grace, all of Charleston, for appellant. Mordecai & Gadsden and Rutledge & Hagood, all of Charleston for respondent.

WOODS J.

Elinor Berger, a daughter of the plaintiff of the age of four years, was run over by a car of the defendant company on King street in the city of Charleston. The accident resulted in the loss of both feet, and, in an action brought in behalf of the child, a judgment of $6,000 was recovered for the injuries inflicted. Afterwards Martin K. Berger, the father of Elinor, brought this action to recover for hospital and medical expenses, for maintenance of the child in her maimed condition, and for loss of her services. The defendant set up the defense of contributory negligence "in that the parent and custodian of said infant suffered, permitted, and allowed the said infant of the age of four years, as in plaintiff's complaint stated, to attempt to cross, in the middle of the block, a populous, public street of the city of Charleston on a day and hour when said street is well known to be more populous than at any other time, and the parent (the mother and custodian) then and there crossed the said street, accompanied by an elder daughter, then 13 years of age, themselves ahead of, and in front of, said infant, without taking any heed of an approaching car and without accompanying, helping, assisting, or in any manner supervising the conduct of said child, who was then and there attempting to follow its mother and sister across the street." By a demurrer to the answer, and by a request to charge, the plaintiff asked the court to hold that, inasmuch as the mother, and not the father, had the custody of the child at the time of the injury, the negligence of the mother could not defeat the recovery by the father for damages inflicted on him. The court held the contrary, overruled the demurrer, and charged the jury that the contributory negligence of the mother would defeat the action if the child was left in her charge by its father.

In this state, the general rule is that the father has the custody of his children, and upon him is imposed the duty of seeing that they are kept in safety. The presumption is that the father of a little child consents that its mother shall have the care of it and provide for its well-being and safety when it is not under his immediate control. In this case, besides the presumption, the father testified that he was away from home when the accident occurred, and that he had left the child in its mother's care.

The doctrine is settled beyond dispute that, while contributory negligence of one in charge of a child will not be imputed to a child of tender years to defeat an action on its behalf yet, in an action by the parent to recover for loss of services and other like damages to him from the injury of his child, his contributory negligence or that of the person to whose care he has intrusted the child will be a complete defense. 29 Cyc. 546; 1 Thompson on Negligence, § 330. In Watson v. Southern Ry., 66 S.C. 47, 44 S.E. 375, the court says: "There is a distinction, however, between...