Chicago & Alton R.R. Co. v. Gregory

• Decision Date: 31 January 1871
• Citation: 1871 WL 7907,58 Ill. 226
• Parties: CHICAGO & ALTON RAILROAD COMPANYv.JOHN GREGORY, by his next friend.
• Court: Illinois Supreme Court

58 Ill. 226

1871 WL 7907 (Ill.)

CHICAGO & ALTON RAILROAD COMPANY

v.JOHN GREGORY, by his next friend.

Supreme Court of Illinois.

January Term, 1871.

OPINION TEXT STARTS HERE

APPEAL from the Alton City Court; the Hon. HENRY S. BAKER, Judge, presiding.

Mr. A. W. CHURCH, for the appellant.

Messrs. WISE and YAGER, for the appellee.

Mr. CHIEF JUSTICE LAWRENCE delivered the opinion of the Court:

This was an action brought in the name of a minor, by his next friend, against the Chicago & Alton R. R. Company for injuries received by plaintiff. The trial resulted in a verdict for plaintiff of $3,833.33.

It appears the parents of the plaintiff, a child not quite five years old, lived very near the railway track, in the village of Brighton. The mother had gone out to milk, leaving the child in the care of his sister eight years old, and returning in a few minutes discovered he had strayed to the track. She went hastily towards him and called to him at the same time, but the child ran down the track. Almost immediately the fast train came along at great speed, not stopping at the depot, and striking the child threw him into the air. The child was somewhat peculiar before, but since the injury he has been nearly or quite idiotic.

We have felt and still feel a good deal of doubt in regard to this case, but have finally decided to affirm the judgment. We can not impute negligence to a child of such tender years, especially to one of less than ordinary mental capacity. On discovering the approach of the train its impulse would doubtless be to run away, but it would be as likely to run down the track as away from it. It could not comprehend the object and use of the rails. Is, then, the mother chargeable with negligence? She seems to have exercised all reasonable care. The same rule should not be applied to persons depending upon their labor for support, and to those whose means enable the mother of the family to give a constant personal attention to the care of children, or to employ a nurse for that purpose. Here the mother had left the house for a few minutes to perform a necessary piece of labor, leaving the boy in charge of his sister, but little older than himself, but probably the only person the mother could provide to look after him during her brief absence. When she returns her first inquiry is for the boy, and she goes in pursuit of him, but too late. If she had heard the train coming, it might be said she should have left her work to look after the boy, but the...