Cleveland, C., C. & St. L. Ry. Co. v. Klee

• Decision Date: 23 February 1900
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. KLEE.
• Court: Indiana Supreme Court

154 Ind. 430

56 N.E. 234

CLEVELAND, C., C. & ST. L. RY. CO.

v.KLEE.¹

Supreme Court of Indiana.

Feb. 23, 1900.

Appeal from circuit court, Hancock county; C. G. Offutt, Judge.

Action by Frank Klee, by Emma Klee, his next friend, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, to recover for injuries received at a railroad crossing. From a judgment in favor of plaintiff, defendant appeals. Reversed.Elliott & Elliott and John T. Dye, for appellant. R. A. Black and W. J. Beckett, for appellee.

BAKER, J.

In Indianapolis, appellant maintains a line of railroad in Georgia street. Helen street runs north and south, and crosses Georgia street at right angles. On June 22, 1894, at this crossing, appellee, a boy 9 years of age at the time of the injury, was struck by appellant's switch engine. This action was begun on December 11, 1895, in the Marion superior court, and the venue was changed to the Hancock circuit court. The complaint is in six paragraphs; the last charging a willful injury, and the others counting on negligence. Appellant's demurrer to each of the first five paragraphs for want of sufficient facts was overruled. Answer of general denial. General verdict for appellee for $5,000. Appellant's motion for a new trial was overruled. The errors assigned are the rulings on the demurrer and the motion for a new trial.

Objection is made to the first paragraph because it does not allege that the plaintiff was free from contributory negligence. This paragraph avers, in substance, that the plaintiff, a boy 9 years old, was of such immature age, judgment, and experience that he did not comprehend and appreciate the danger of the situation, and was incapable of negligence in the premises. A child 9 years old has passed the age when the law conclusively affirms that he is incapable of negligence, and, on the other hand, he has not reached the age when the law definitely pronounces his conduct negligent or prudent by the rules applicable to adults. Regarding the conduct of a child between the age when he is conclusively presumed to be incapable of negligence, and the age when he is conclusively presumed to be negligent under the same circumstances that would reveal an adult's negligence, the law is neutral; it lays down no conclusive presumption. Of such a child it cannot be said, as a matter of law, that his age shows him either incapable or capable of negligence. That question is to be determined as a fact in every such case. Beach, Contrib. Neg. (3d Ed.) §§ 21b, 117, 136; Patt. Ry. Acc. Law, §§ 70-73; Railroad Co. v. Pitzer, 109 Ind. 179, 6 N. E. 310, and 10 N. E. 70;Railway Co. v. Wilson, 134 Ind. 95, 33 N. E. 793;Railway Co. v. Tappenbeck, 9 Ind. App. 422, 36 N. E. 915;Bridger v. Railroad Co., 25 S. C. 24;Railway Co. v. Rodgers (Tex. Civ. App.) 39 S. W. 383; note to Railway Co. v. Hardy, 37 C. C. A. 362-368, 94 Fed. 294. The averment of the plaintiff's incapacity was therefore an averment of fact, and not a legal conclusion. With this averment in the paragraph, it was not necessary to allege that plaintiff was free from negligence contributing to his injury. The case in this first paragraph is of one who is non sui juris, and would be defeated by a finding that plaintiff was capable of contributory negligence, whether in fact he was guilty thereof or not.

The sufficiency of the second paragraph is challenged on the ground that it does not state that plaintiff was injured without contributory negligence on his part. An examination of the paragraph, however, discloses that a direct averment to that effect is made, and that no specific facts in repugnance thereto are alleged.

The third paragraph is said to be insufficient because it counts on the violation of an ordinance as the actionable negligence of appellant, and then fails to show that such violation was the proximate cause of plaintiff's injury. The violation of the ordinance was merely one of several elements in the appellant's negligence as charged in this paragraph. As was said in Railway Co. v. Gray, 148 Ind. 266, 271, 46 N. E. 675: “Because the particular act of negligence prohibited by the statute is included in the sum total of negligent acts charged against appellant, it does not follow that the theory of the complaint is thereby confined and limited to the statutory offense charged.”

The fourth paragraph charges “that on or about the 22d day of June, 1894, this plaintiff, a child of nine years of age, was on the said crossing of Georgia and Helen streets, and upon said track of said defendant, in said Georgia street, without fault or negligence on his part, and while in said position and place, and while in plain view of defendant's servant in control of and managing said locomotive, and while seen and distinguished by said defendant's said servant in time to have stopped said locomotive by the exercise of due care, and avoided injury to this plaintiff, the said defendant, through and by its said employés and servants, negligently approachedsaid plaintiff with said locomotive belonging to this defendant, and negligently ran its locomotive against and onto this plaintiff, and negligently dragged this plaintiff a long distance, to wit, 200 feet, and negligently ran onto the right leg of this plaintiff, and negligently injured and crushed the said right leg of this plaintiff then and there, all without fault or negligence on the part of this plaintiff.” This paragraph charges that appellant's servants saw plaintiff on the track in time to have stopped the engine before reaching him, but failed to do so. At that point of time, plaintiff, though upon the track, was not in a condition of peril, unless he was prevented by some physical or other incapacity from using ordinary care to get off from the track. A child 9 years old is not presumed to be non sui juris. No facts are alleged showing that he was incapable of understanding the peril that might result from continuing to stand on the track. It is not alleged that he did not see and hear the approaching engine. It is not stated that he did not have the ability and opportunity to...