Chicago City Ry. Co. v. Wilcox

Citation138 Ill. 370,27 N.E. 899
PartiesCHICAGO CITY RY. CO. v. WILCOX.
Decision Date15 June 1891
CourtSupreme Court of Illinois
OPINION TEXT STARTS HERE

Appeal from appellate court, first district.

WILKIN, J., dissenting.

C. M. Hardy, for appellant.

E. F. Masterson and Charles E. Pope, for appellee.

BAILEY, J.

This was an action on the case, brought by Frank Wilcox, an infant, by his next friend, against the Chicago City Railway Company, to recover damages for a personal injury. The declaration alleges that on the 24th day of June, 1887, the plaintiff was passing along Harmon court in the city of Chicago, at its crossing over the defendant's railway on Wabash avenue; that the defendant, by its servants, was then and there running on said railway a train of cars drawn by cables running underneath the surface of said avenue, and that, while the plaintiff, with all due care, was passing along Harmon court at said railway crossing, the defendant, by its servants, so carelessly and negligently managed and controlled said train of cars, without slackening the speed thereof or ringing a bell, that said train ran upon and struck the plaintiff with great force and violence, and so bruised and injured one of his legs as to render it necessary to amputate the same, thus rendering him a cripple for life. The defendant pleaded not guilty, and on trial the jury found a verdict for the plaintiff, and assessed his damagesat $15,000, and for that sum and costs the plaintiff had judgment. On appeal to the appellate court said judgment was affirmed, (33 Ill. App. 450,) and by a further appeal the record is now brought to this court for review.

The plaintiff, at the time he was injured, was a child only six years of age, and was living with his father and step-mother on the south side of Harmon court, a few feet east of the corner of Wabash avenue. The evidence tends to show that just before the time of his injury he was on the south-west corner of Wabash avenue and Harmon court, playing with two other boys, and that his step-mother had come out of her house, and was standing on the corner of the opposite side of Wabash avenue. That, as she came out to the corner, the plaintiff called to her, and asked her if she wanted him, to which she replied: ‘No, you can stay there.’ That an acquaintance of Mrs. Carroll's coming along, she conversed with her for a few minutes, and then turned to go back to her house, and as she did so, the plaintiff called out: ‘Mamma, wait; I am coming.’ That she thereupon stopped, and stood waiting for the plaintiff, and as she did so she saw a train of cable-cars approaching from the north, and motioned to the plaintiff to wait until it had passed, which he did. That, as it passed, the plaintiff walked around the rear end of it, and was immediately struck by another train coming from the south, and received his injury.

The only material question in the case open for consideration here arises upon the third instruction given to the jury at the instance of the plaintiff, which was as follows: ‘The court instructs the jury for the plaintiff that, if they, from the evidence, believe that the parents are working people, and that the father was not present at the time of the accident, and that the mother was attending to her usual occupation in attending their little store on Harmon court, in such event the law does not require that persons in their station of life shall keep constant watch over their children; nor can the want of such care be imputed to them as negligent conduct; nor can negligence be imputed to the child, on account of its age, he being seven years of age, or about that, at that time.’ This instruction incorrectly assumes that the plaintiff, at the time of his injury, was one year older than he really was. The trial was in November, 1888, and the evidence is that he was seven years of age the preceding June, which would make him but six years of age June 24, 1887, the date of his injury. But this erroneous assumption was more favorable to the defendant than the evidence warranted, and therefore affords the defendant no just ground of complaint. The instruction, also, while holding that under the facts supposed the negligence of the plaintiff's parents cannot be imputed to him, seems to be based upon the tacit assumption that, under proper circumstances, the rule of imputed negligence might apply. This assumption, if erroneous, was not prejudicial to the defendant, as the defense is based upon the assertion of that rule, as well as the assumption that it should be applied under the facts in this case. The instruction, then, so far as this portion of it is concerned, is free from any valid objection which the defendant can urge, if it can be shown either that under the facts supposed the negligence of the plaintiff's parents cannot be imputed to him, or that the doctrine of imputed negligence can have no application to a case of this character. We prefer to consider the latter of these two propositions, and the question then is whether the negligence of the plaintiff's parents, even if such negligence is proven, can be imputed to the plaintiff, so as to be available in support of the defense of contributory negligence. Upon this question the decisions of the courts of the various states are very much in conflict. The leading case among those which hold that the negligence of a parent, custodian, or one in loco parentis should be imputed to a child not capable of caring for his own safety, is Hartfield v. Roper, 21 Wend. 615, decided by the supreme court of New York in 1839. In that case the plaintiff, a child about two years old, was alone in a traveled portion of a highway some distance from any house. The defendant was driving a sleigh, and the child was run over by the horses and injured before the defendant or any of those in the sleigh saw him. The plaintiff having recovered a verdict, a new trial was granted on the grounds: First, that the evidence failed to show negligence on the part of the defendant; and, second, that negligence on the part of the plaintiff's parents was clearly shown. The court held that, although the child, by reason of his tender age, was incapable of using that ordinary care which is required of a discreet and prudent person, the want of such care on the part of his parents furnished the same answer to an action by the child as would the omission of such care by the plaintiff himself in an action by an adult. The reasoning of the court, embodied in an elaborate opinion by Mr. Justice COWEN, is, in substance, that the custody of the child was confided by law to its parents; that said child could not be exposed, as it was in that case, without gross negligence; that an adult injured by a collision could not recover if he had contributed to the injury; that the same rule was applicable to children, and could be enforced only by requiring care from those who have them in custody; that an infant is not sui juris, but belongs to his custodian; that the custodian is his agent, and the custodian's neglect is therefore his neglect. The rule thus established has been adhered to, with slight modifications, by the courts of New York, and has also been adopted by the courts of several of the other states, and is usually known as the ‘New York Rule.’ What is known as the ‘English Rule’ is declared in Waite v. Railway Co., El. Bl. & El. 719. In that case the plaintiff, an infant about five years old, was in charge of his grandmother, who purchased tickets for both at a station, with the intention of taking the train to another point on said line of railway. In crossing the track to reach a platform they were run down by a train under circumstances of concurrent negligence on the part of the grandmother and the servants of the company. The grandmother was killed, and the plaintiff seriously injured. The court, in holding that no recovery could be had, repudiated the idea that there was any relation between the plaintiff and his grandmother akin to that of principal and agent, but placed its decision upon the theory that he and she were identified the same as though he had been in her arms. The decision turned upon the legal identity between the infant plaintiff and his custodian, and did not go beyond that class of cases in which the parent or custodian is present and controlling the infant at the time of the injury. In this country, in many of the states, the rule established by the case of Hartfield v. Roper has been seriously criticised and condemned. The leading case in which that rule is repudiated, and in which is established what has sometimes been called the ‘Vermont Rule,’ is Robinson v. Cone, 22 Vt. 213. In that case a boy, less than four years of age, was attending school in the country, and, as he was returning home he was amusing himself by riding down bill on his sled. While engaged in this sport, as he was lying upon his breast on his sled, with his legs hanging over the sled, he was run upon and injured by the two-horse sleigh of the defendant, who was driving down hill on a smart trot. The court in its decision repudiated the doctrine of imputed negligence, and held that, although a child of tender years may be on the highway through the fault or negligence of his parents, yet, if he be injured through the negligence of the defendant, he is not precluded from obtaining his redress; all that is required of the infant plaintiff being that he exercise care and prudence commensurate with his capacity.

The rule denying the doctrine of imputed negligence is now recognized and enforced by the courts of many of the states, and is supported by the reasoning and authority of text-writers, whose opinions are justly entitled to a high degree of consideration. Among them may be mentioned Mr. Bishop, who in his recent treatise of Non-Contract Law, section 582, says: ‘This new doctrine of imputed negligence, whereby the minor loses his suit, not only where he is negligent himself, but where his father,...

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