Chicago City Ry. Co. v. Wilcox

• Decision Date: 14 May 1890
• Citation: 24 N.E. 419
• Parties: CHICAGO CITY RY. CO. v. WILCOX.
• Court: Illinois Supreme Court

24 N.E. 419

CHICAGO CITY RY. CO.

v.WILCOX.¹

Supreme Court of Illinois.

May 14, 1890.

Appeal from appellate court, first district.

Action by Frank Wilcox against the Chicago City Railway Company. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendant appeals.

C. M. Hardy, for appellant.

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

WILKIN, J.

Action on the case, begun in the circuit court of Cook county, to the September term, 1887. The declaration charges that appellant was on the 24th day of June, 1887, running a line of street ‘grip-cars' on Wabash avenue, in the city of Chicago, and that plaintiff, in crossing its track on Harmon court, using due care, was, by the negligence of defendant's employes in charge of one of its cars, run over, and one of his legs so bruised and wounded that it became necessary to amputate it. He recovered a judgment for $15,000, which was affirmed by the appellate court. At the time of the injury, plaintiff was but six years of age, living with his parents near the place of his injury.

On the trial the court gave to the jury the following instruction: ‘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 in 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, appellant insists, was error. No other question of law is presented for our decision. We need only direct our attention to the propositions of law announced in it.

The first part of this instruction assumes that, in an action by a child so young negligence cannot be imputed to it, to recover for a personal injury received through the negligence of another, want of proper care by its parent, guardian, or other custodian, in suffering it to go at large unattended, cannot be charged to the child as contributory negligence, so as to defeat the action. If this hypothesis is incorrect, that part of the instruction could only have operated to the plaintiff's prejudice, and the defendant cannot complain of its inaccuracy. The instruction also lays it down as a rule of law that a child of seven years of age cannot in such case be chargeable with personal negligence. Thus two legal questions are presented for decision, upon either of which there is to be found a conflict of authorities. On the first, two well-defined lines of decisions appear, each in direct conflict with the other. In Shearman & Redfield on Negligence the rule established by one line of these decisions is denominated the ‘New York rule,’ the other the ‘Vermont rule.’ Sections 74, 78. The first is based upon Hartfield v. Roper, 21 Wend. 615, in which it is said: ‘An infant is not sui juris. He belongs to another, to whom discretion in the care of his person is exclusively confided. That person is keeper and agent for this purpose; and, in respect to third persons, his act must be deemed that of the infant. His neglect is the infant's neglect.’ The other or Vermont rule ‘holds that the contributory negligence of a parent, guardian, or other person having control of the child is not to be imputed to the child itself,’ so as to defeat an action by it for an injury caused by the negligence of another. Robinson v. Cone, 22 Vt. 213. It is insisted by counsel for the appellant that we are committed to the first-named rule. Messrs. Shearman and Redfield seem to have so understood some of our former decisions, and so cite them in their valuable work on the Law of Negligence. 4th Ed. vol. 1, § 74, note 6. It will be found upon examination that the cases cited do not bear that construction. Hund v. Geier, 72 Ill. 393, was a suit by a father for an injury to his infant son. Railroad Co. v. Grable, 88 Ill. 441;Chicago v. Hesing, 83 Ill. 204;Chicago v. Starr, 42 Ill. 174; Railroad Co. v. Becker, 76 Ill. 25, and the same case in 84 Ill. 483,-in each of which cases the action was by an administrator for the benefit of the parents as next of kin. These cases are so clearly distinguishable from those in which the child himself sues that they must have been cited by mistake. See Id. § 71. The two remaining cases cited in note 6 were suits by the child in its own name, but neither of them holds that negligence on the part of the parents would have defeated the action. In Gavin v. Chicago, 97 Ill. 66, Gavin recovered a judgment in the circuit court of Cook county against the city of Chicago for an injury to his person alleged to have been occasioned by the city in negligently maintaining a swing bridge. That judgment was reversed by the appellate court of the first district, and Gavin prosecuted a writ of error to this court. The judgment of the appellate court was affirmed on the broad ground that the evidence showed no negligence on the part of the city. It appeared, however, that on the trial the care bestowed upon the plaintiff by his parents, he being a child but four years of age, was submitted to the jury; and Justice SCOTT, rendering the opinion of the court, said: ‘Under the circumstances proven, the jury found there was no negligence on the part of the mother touching the care she bestowed upon her child.’ In Railroad Co. v. Gregory, 58 Ill. 226, the defendants offered proof of the negligence of the plaintiff's mother in permitting him to go unattended in a place of danger. The competency of such evidence was not raised either on the trial below or in this court. In affirming the judgment of the circuit court, it was said the evidence failed to establish such negligence; but that fact in no way controlled in the decision of the case. All that can be fairly said in regard to these cases is that the question now under discussion might have been raised in them, but counsel did not see fit to do so; and, as its decision did not become necessary to a proper determination of the cases, the court was not called upon to express any opinion upon it, and did not. In Wharton on Negligence, Ross v. Innis, 26 Ill. 260;Chicago v. Starr, 42 Ill. 174; and Railroad v. Bumstead, 48 Ill. 221,-are cited, in a note to...