Citizens' St. R. Co. v. Stoddard
| Decision Date | 29 May 1894 |
| Citation | 37 N.E. 723,10 Ind.App. 278 |
| Parties | CITIZENS' ST. R. CO. v. STODDARD. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from superior court, Marion county; N. B. Taylor, Judge.
Action by William R. Stoddard against the Citizens' Street-Railroad Company for the death of a child. Judgment for plaintiff. Defendant appeals. Reversed.
W. H. Latta and A. L. Mason, for appellant. Beckett & Doane, for appellee.
The appellee brought this action against appellant, and recovered damages in the court below, for the death of his minor child, who was run over by one of appellant's street cars, and from the effects of the injuries thus received he died within a few hours after the accident. The only questions presented for our consideration relate to the rulings of the trial court in overruling appellant's motion in arrest of judgmentand for a new trial. It is alleged in the complaint that the mother of the boy was sick, and confined to her bed, and that her necessities compelled her to send him on an errand across the street, along which appellant operated a street railroad, and that the cars on said line were drawn and propelled by mule power. It is insisted by counsel for appellant that the complaint is bad, for the reason that it does not show want of contributory negligence. It is conceded that the general averment on that subject is controlling unless it clearly and affirmatively appears from the other facts alleged in the complaint that negligence on the part of the mother of the child contributed to the injuries sustained by the child. Railroad Co. v. Athon, 6 Ind. App. 295, 33 N. E. 469. The contention, however, is that the court must say as a matter of law from the specific averments of the facts in the complaint that the street was a place of danger, and that the mother of the boy was in fault, under the circumstances, in sending him across the street. In other words, that such act on her part constitutes contributory negligence which bars a recovery in this action. The rule is well settled in this state that, if the complaint contains a statement of the facts sufficient to constitute a substantial cause of action and bar another suit for the same cause of action, all intendments are taken in favor of the pleading, and its defects, if any, such as might be supplied by proof, are cured by the verdict, and it will be treated as sufficient, on motion in arrest, or when called in question for the first time by assignment of error in this court, to uphold the judgment. Rev. St. 1894, § 341 (Rev. St. 1881, § 338); Railway Co. v. Smith, 5 Ind. App. 560, 32 N. E. 809;Duffy v. Carman, 3 Ind. App. 207, 29 N. E. 454;Printing Co. v. Fry (Ind. App.) 35 N. E. 1045;Colchen v. Ninde, 120 Ind. 88, 22 N. E. 94;Old v. Mohler, 122 Ind. 594, 23 N. E. 967.
Indulging the most liberal intendment, as we are required to do, under the authorities, we proceed to the consideration of the question whether the complaint, after verdict, is subject to the objections urged against it by counsel. In this connection, and in order to give practical effect to the rule above mentioned, it should be borne in mind that all the allegations should be construed together; that each separate and independent averment must be considered with reference to the other facts stated. When a complaint is attacked by demurrer, it is construed most strongly against the pleader; but that rule does not prevail when the attack is made for the first time by motion in arrest or by assignment of error in this court calling in question its sufficiency. Railroad Co. v. Petty, 30 Ind. 261. It appears from the allegations in the complaint that, while the child, a boy five years of age, was crossing the street, in full sight of the servant operating the car, the defendant negligently, carelessly, and wrongfully drove its mules and car onto and over the boy. There is no charge of willful negligence, but the complaint does charge the act which resulted in the injury as having been carelessly and negligently done, without alleging the specific acts constituting the negligence. Railway Co. v. Craycraft, 5 Ind. App. 335, 32 N. E. 297. It is charged in this connection that the boy was of bright mind and intelligence, of strong, robust health and physical constitution, and that he was too young to be capable of rightly appreciating danger, or to have proper caution and discretion. These averments, under the decisions in this state, show that the child was non sui juris, and therefore chargeable with the negligence of his parents. Railway Co. v. Tappenbeck (Ind. App.) 36 N. E. 915, and authorities there cited; Railroad Co. v. Vining, 27 Ind. 513; Railway Co. v. Pitzer, 109 Ind. 119, 6 N. E. 310, and 10 N. E. 70. Ordinarily, the question of contributory negligence in such cases is one of fact for the jury. Huerzeler v. Railroad Co. (Com. Pl. N. Y.) 20 N. Y. Supp. 676, 34 N. E. 1101;Bridge v. McKinney (Ind. App.) 36 N. E. 448. This rule does not apply in the case under consideration if the only inference that can be drawn from the facts stated in the complaint is that the mother was guilty of contributory negligence. Railway Co. v. Grames (Ind. Sup.) 34 N. E. 714. The question is whether it clearly and affirmatively appears on the facts alleged, under all the circumstances, taking into consideration the age, intelligence, and capacity of the boy, as disclosed by the averments in the complaint, that the mother was in fault in sending him across the street, and that such act on her part contributed as a proximate cause to his injuries. Cases which impute negligence to parents who permit children of tender years to wander unattended in the vicinity of and upon railroad tracks are not controlling here, unless the danger encountered by the boy was such as should have been reasonably apprehended by a prudent person in the exercise of ordinary care. City of Indianapolis v. Emmelman, 108 Ind. 530, 9 N. E. 155; Elliott, Roads & S. pp. 589, 590. It is a matter of common knowledge that street cars drawn by mules are confined by the track to a particular locality of the street, and that such cars are provided with brakes, with which the driver can readily stop the car. The public, who have the right to use the streets, may presume that the mules and car are in charge of a competent driver, whose business it is to look ahead, and see that no person or obstruction comes upon the track. The complaint does not disclose any facts or circumstances indicating that this street was a dangerous place, unless such inference necessarily arises from the fact that street cars, drawn by mules, were operated on the track. The character and extent of travel on this street is not shown, nor does it appear how frequently street cars passed over said track at this point. It may be conceded that the mother fully understood the situation, and that she had knowledge of any danger which can be inferred to have existed as the result of the operation of the street-car line in the due and ordinary course of business. In the first place, it should be remembered, the law, as a general proposition, is well settled that “streets are open to persons of all ages, and children are and must be permitted, to some extent at least, to go upon the streets of towns and cities without incurring the imputation of negligence upon themselves or their parents.” City of Indianapolis v. Emmelman, supra. The appellant was bound to take notice of the fact that children were likely to be on the street, and it was required to use greater care to avoid injury to them than with older persons who had reached the age of discretion. Penso v. McCormick, 125 Ind. 116, 25 N. E. 156. In Elliott on Roads and Streets the author says: “It is the duty of a street-railway company to run its cars with a due regard to the rights of infirm persons, aged persons, and children of tender years, for all classes of citizens have a right to freely use the public streets; and, as this is the duty of the company, it is liable if it does not use due care to prevent injury to various classes of persons that may lawfully use the streets.” Page 590; Railway Co. v. Maynard, 5 Ind. App. 372, 32 N. E. 343. It is true the boy is alleged to have been too young to be capable of rightly appreciating danger, or to have proper caution and discretion; but, in view of the further averment in this connection that he was of bright mind and intelligence, and of strong, robust health and physical condition, it cannot be said, in considering the motion in arrest, that he is shown to have had less capacity than is usually possessed by boys of his age. It has been held in several cases in this state, as a matter of law, that children ranging from two years to seven years and two months are non sui juris, and therefore the averments in the complaint in relation to the capacity of the boy, when construed together, do not change the legal presumption which would prevail in the absence of such averment. Railroad Co. v. Tappenbeck, supra, and authorities there cited. Children who are six years of age, incapable of rightly appreciating danger, and without proper caution and discretion, have the right, although they may not be in strong, robust health and physical condition, to use the streets in going to and returning from school. It cannot be declared, as a matter of law, that parents are in all cases guilty of negligence in sending them to school, even if they are required to travel on and across streets in which street-car lines are operated. Railway Co. v. Keely (Ind. Sup.) 37 N. E. 406. As to the degree of care required of the children, they must be judged according to their age and capacity. Railway Co. v. Pitzer, supra. It may well be doubted whether the decisions referred to should be construed as holding that all children seven years of age are, under all circumstances, non sui juris. Ordinarily, the question is one of capacity, and usually it should be left to the jury...
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