City of Evansville v. Senhenn

• Decision Date: 15 September 1897
• Citation: 151 Ind. 42,47 N.E. 634
• Parties: CITY OF EVANSVILLE v. SENHENN.
• Court: Indiana Supreme Court

151 Ind. 42

47 N.E. 634

CITY OF EVANSVILLE

v.SENHENN.¹

Supreme Court of Indiana.

Sept. 15, 1897.

Appeal from circuit court, Warrick county; Edward Gough, Judge.

Action by Amelia Senhenn against the city of Evansville. From a judgment for plaintiff, defendant appeals. Reversed.

Geo. A. Cunningham, for appellant. J. E. Williamson, for appellee.

McCABE, C. J.

The appellee sued the appellant in the superior court of Vanderburg county for damages arising from a personal injury caused by the falling of a pile of lumber through the alleged negligence of appellant, resulting in the loss of appellee's foot, in August, 1874, when she was about five years old. The venue was changed to the Warrick circuit court, where a trial resulted in a verdict and judgment for the defendant. On an appeal to this court that judgment was reversed for error in instructing the jury. Senhenn v. City of Evansville, 140 Ind. 675, 40 N. E. 69. On the return of the case to the circuit court another trial resulted in a verdict and judgment for the plaintiff over defendant's motion for a new trial. The only error assigned is upon the action of the trial court in overruling appellant's motion for a new trial. The only errors complained of and urged by appellant under that motion are the giving and refusal of certain instructions by the trial court.

One of the most important questions in the case arises upon the court's refusal to give instruction No. 13 asked by the appellant, reading as follows: “If the plaintiff's parents knew that the pile of lumber was in the street, and was dangerous, and liable to fall, then it was their duty to exercise reasonable care in keeping the plaintiff away from the same; and if they failed to exercise such reasonable care, and such failure directly contributed to the injury, the plaintiff cannot recover.” The evidence was such as to make this instruction applicable if it expresses the law correctly on the facts. This instruction raises one of the most vexed questions in the law. It is well settled that an infant of tender years is deemed in law not possessed of sufficient discretion to make it guilty of negligence for its failure to exercise due care for its own safety. Shear. & R. Neg. (3d Ed.) p. 48, note 1; 2 Thomp. Neg. 1181. On that point there is no conflict of opinion. But there is a sharp conflict of opinion between courts of last resort as to whether the negligence of the parent or guardian having the custody and control of such infant in exposing it to danger from the negligence of others, whereby it is injured, can be attributed to such infant so as to defeat its right of recovery therefor. It is contended in support of the correctness of the court's action by appellee's counsel that the overwhelming weight of judicial decisions condemns the instruction, while appellant contends that this court is committed to the doctrine expressed by the instruction in a long line of its own decisions, in proof of which we are cited to the cases of Railway Co. v. Vining's Adm'r, 27 Ind. 513; Railroad Co. v. Huffman, 28 Ind. 287; Railroad Co. v. Bowen, 40 Ind. 545;Hathaway v. Railway Co., 46 Ind. 25; Railroad Co. v. Wolf, 59 Ind. 89;Mayhew v. Burns, 103 Ind. 328, 2 N. E. 793; Railway Co. v. Pitzer, 109 Ind. 179, 6 N. E. 310, and 10 N. E. 70;Railway Co. v. Shanks, 132 Ind. 395, 31 N. E. 1111;Railway Co. v. Wilson, 134 Ind. 95, 33 N. E. 793;Railway Co. v. Keely, 138 Ind. 600, 37 N. E. 406. But it is contended by appellant's counsel that the question here involved, namely, whether the contributory negligence of the parents of an infant plaintiff of such tender years as incapacitates it to exercise due care is imputable to the child, was not presented, considered, or decided in any of these cases. This claim is a little too broad. That question may not have been presented or considered in any of those cases, and we are inclined to think that is true. But in two of the cases only was it decided. It is recognized as established law everywhere that in an action by a parent on account of the death of such an infant of tender years under statutes for the death of the child caused by the negligence of the defendant and for loss of services where death did not ensue, at common law, the parent's negligence through which the child was exposed to the danger contributing to the injury defeats the parent's action, it being recognized that there is no difference in the effect of such negligence on the part of the parent in such an action and the effect of his negligence contributing to an injury to his own person or property. In either case he attempts to found an action for damages on his own negligence and wrong, which would be manifestly unjust, as well as against principle and authority. But where the child brings the action to recover damages for its own injury, where the judgment recovered must inure to its own exclusive benefit, where its improvident actions contributed to such injury, manifestly a very different question is presented. The law, taking cognizance of its want of discretion, and that its tender years renders it impossible for it to know any better, exempts it from the charge of negligence.

Upon what principle, then, we are led to inquire, may its parent's, guardian's, or custodian's negligence be imputed to it so as to take away its property in its cause of action for defendant's negligence making it a cripple for life? We know of none unless this court is by its previous decisions irretrievably committed to that doctrine. The first case cited above, viz. Railway Co. v. Vining's Adm'r, 27 Ind. 513, was a case where the father, as administrator, recovered the judgment for the death of his son through the negligence of the defendant railway company. The judgment was reversed for error in overruling a demurrer to the complaint assigning for cause insufficiency of facts; (2) that the plaintiff had no legal capacity to sue as administrator of his infant son. It was held that the right of action by the statute was in the father as such, and not in the administrator, and it was further held that the complaint was bad for failure to allege that the parents of the infant, being seven years of age, were free from contributory negligence, and it was also held that the evidence was insufficient. This decision was clearly right, because under the statute the cause of action, if any existed, belonged to the father as such. That right of action for the negligence of the defendant could only be maintained by him by allegation and proof that his own negligence did not contribute to the injury sued for, as in any other suit by him for negligence. There was not any question made, as there could not have been made any question, in the case as to the imputability of the parent's negligence to the injured child. Yet this court, in support of its conclusion, cited the leading case, and the one which originated the doctrine of imputing the negligence of the parent or custodian to the child, namely, Hartfield v. Roper (decided by the supreme court of New York in 1839) 21 Wend. 615. While that case decides that the contributory negligence of the parent may defeat an action for injury through negligence to an infant who is non sui juris, making it to that extent applicable, and affords support to the conclusion reached in Vining's Case, yet Hartfield v. Roper, supra, goes further, and originates the doctrine of the imputability of the parent's negligence to the child so as to defeat its right of action,-a proposition not involved in Vining's Case.

The next case in which any question of the sort was involved coming up before this court was Railroad Co. v. Huffman, 28 Ind. 287, and that case did involve the precise question here involved, but it appears from the case that this court did not think any other or different question was presented than that presented and decided in Vining's Case. There is not a word in the case that indicates that this court intended to decide that an infant non sui juris injured by negligence is chargeable with the negligence of its parents contributing to its injury. The case is decided upon the theory, simply, that the parent's negligence contributing to the injury defeats the action. The only authority cited for such conclusion is Vining's Case, and that this court supposed it was deciding nothing but the same question that had been decided by it in that case is clearly evidenced by the language in reference thereto in the Huffman Case, as follows: “We are clear that the law was correctly stated [in Vining's Case], and its application to this case cannot be questioned.” That case was correctly decided, as we have already seen, and that seems to be all this court supposed it was deciding in the Huffman Case, the opinion being delivered in both cases by the same judge, Ray. But the latter case necessarily decides an entirely different question than the former, namely, that the negligence of the parent may be imputed to the injured child who is non sui juris so as to defeat its action for its own injury caused by a defendant's negligence. The most cogent reasons ought to be shown why such an inconsiderate judgment should bind this court to a rule thus inadvertently established, and without consideration of the real question involved and decided. We are now for the first time in the history of our court asked to give the question consideration, and say whether, in our judgment, the law imputes the parent's negligence to the child non sui juris in such an action. The decision in the Huffman Case is the principal barrier to such consideration and decision, and, while it is the policy of the law not to depart from decisions previously made by a court of last resort, yet the same law does require such departure where adherence to such decisions would be productive of more evil than the departure therefrom, and the establishment of the better and sounder rule. It is very seldom that a departure...