Cooper v. Lake Shore & M. S. R. Co.

• Decision Date: 09 June 1887
• Citation: 33 N.W. 306,66 Mich. 261
• Parties: COOPER, Adm'r, etc., v. LAKE SHORE & M.S. RY. CO.
• Court: Michigan Supreme Court

33 N.W. 306

66 Mich. 261

COOPER, Adm'r, etc., v. LAKE SHORE & M.S. RY. CO.

Supreme Court of Michigan

June 9, 1887

Error to circuit court, St. Joseph county.Weaver & Weaver, (George C. Greene and A.G. Getzen Danner, of counsel,) for the Railroad Co.

The rule cannot be better stated than was done by Mr. Justice MORSE in Ecliff v. Wabash, St. L. & P. Ry. Co.,31 N.W. 183: "It is true the caution required is, according to the maturity and capacity of the child, to be determined in each case by the facts in such case; and the degree of discretion in avoiding danger depends upon the age and knowledge of the child.And when there is any conflicting evidence as to the danger likely to be incurred, or as to the act or acts in getting in the way or reach of such danger, or as to the age or capability of the child, the question of contributory negligence of the person injured or killed should be submitted to the jury; or if all the circumstances of the case, when the facts are undisputed, are such that ordinarily prudent men would be liable to differ in their views as to the negligence imputed, then such negligence should not be determined by the court, but the question left to the jury under proper instructions.In this case there is no conflict of evidence upon these points to be considered in determining whether or not the boy was negligent.He was of ordinary intelligence, and unusually bright of his age, as his mother testifies.Although delicate in health, he was full of animal spirits and out doors a great deal.He was, of course, more heedless and thoughtless of danger than a man but he was living in the immediate vicinity of railroad trains, and accustomed to them.He must be presumed to have known of the great peril and danger of riding where he did.*** A boy of 12 years knows, as well as an adult, that upon the top of freight cars, or in front of the engine, when reversed, between that and the cars, is not a safe place when the train is moving.The fact that a boy of that age is more reckless and not as cautions as a man, in the face of such danger, is not of itself enough to excuse him.I can see no reason for submitting a question as plain and clear as this one to a jury."

With equal propriety, and with equal force may we apply this language to the case at bar.

In Masser v. Chicago, R.I. & P. Ry. Co., (Iowa,)27 N.W 777, like language was used by ADAMS, C.J.: "A boy eleven years of age knows, as well as an adult does, what a railroad is, and the use to which it is put, and the consequence to a person who should be struck by a passing train, and knows that he should not stop to play or lounge around a network of tracks.It is true that a boy of that age cannot be presumed to have the judgment of an adult; but it does not require much judgment to keep from walking in a dangerous place, the dangers of which are fully understood.*** We certainly cannot hold that a boy 11 years old is exercising reasonable prudence in making such a place as that to which deceased and his companions went a play-ground or lounging place, nor that a jury would be justified in so finding."

In Reynolds v. New York Cent. & H.R.R. Co.,58 N.Y. 248, a boy 13 years old crossed the track, and was killed by one of two trains going in opposite directions.No one saw the accident.A moment after he was found dead in the cattle-guard between the tracks.ANDREWS, J.:"It cannot be said, under the circumstances of this case, that deceased was not capable of appreciating the danger of going upon the railroad track without looking for approaching trains, which, if he had done, would have saved his life, so far as can be seen from the evidence."

In Nagle v. Allegheny Val. R. Co.,88 Pa.St. 35, it is said: "A child of the age of 14 years is presumed to have sufficient capacity to be sensible of danger, and to have the power to avoid it; and this presumption will stand until overthrown by clear proof of the absence of such discretion as is usual with children of that age."

In Wendell v. New York Cent. & H.R.R. Co.,91 N.Y. 420, a bright, active boy, seven years old, considered competent by his parents to go to school, and run on errands alone, was in the habit of crossing the railway at the place where the accident happened.On the day in question he and a companion started to run across ahead of a train.The flag-man tried to stop them, but could not.This boy fell on the track and was killed.Held that a motion for a nonsuit on the ground of contributory negligence was improperly denied.

In McMahon v. Northern Cent. Ry. Co.,39 Md. 438, a boy less than six years old attempted to crawl under a moving train.Held that he could not recover, on the ground of contributory negligence.

In Moore v. Pennsylvania R. Co.,99 Pa.St. 301, 4 Amer. & Eng. R. Cas. 569, the railroad was laid upon and along the bed of a public street.A boy nearly ten years old, bright and intelligent, had been sent on an errand.Though there was an ample sidewalk, he took the ends of the track ties for his path.He was overtaken by a train and killed.By the court: "As the testimony was so entirely undisputed, it was the duty of the court to pass upon it, which it did by directing a nonsuit.In this there was no error.The circumstance that the trespasser in this instance was a boy ten years of age cannot affect the application of the rule.The defendant owed him no greater duty than if he had been an adult.In Railroad Co. v. Hummell,44 Pa.St. 375, the rule was applied to the case of a child 7 years old.And so also, in the latest case of the kind that has been before us, (Cauley v. RailroadCo., 2 Amer. & Eng. R. Cas. 4, and 4 Amer. & Eng. R. Cas. 533,) the rule was in nowise relaxed, although the person injured was a boy of tender years."

In Baltimore & P.R. Co. v. Maryland,54 Md. 648, 4 Amer. & Eng. R. Cas. 574, a lad 12 years old sat down on the end of the ties, to watch the cows, and was killed.Held there could be no recovery.

In Messenger v. Dennie,137 Mass. 197, and141 Mass. 335, 5 N.E. 283, the plaintiff was eight years and nine months old, and the court held there was no evidence of due care on his part; saying, "His injury was the natural consequence of his careless act."

In Oil City & P.B. Co. v. Jackson, 6 Atl.Rep. 128, a boy seven years of age walked on a gas-pipe above the floor of the bridge, and fell through a hole in the bridge, which he would not have got into by traveling where he ought to.Held there could be no recovery.

In Baltimore & O.R. Co. v. Schwindling,101 Pa.St. 258, a boy five or six years old, loitering around a depot, was injured by a projection from one of the cars.Held the company owed him no duty.

In Chicago & N.W. Ry. Co. v. Smith,46 Mich. 504, 9 N.W. 830, a boy eight years old was trespassing upon the railway grounds, got on the engine step, and was ordered off.He jumped off, fell, and was run over.Held the company was not liable without showing reckless management by those in charge of the engine.

We submit that the rule applied, and the reasoning given, in the case of Kelley v. Michigan Cent. R. Co.,31 N.W. 904, by CHAMPLIN, J., is strictly applicable to this case: "The highway crossing is for the purpose of passage from one side of the railroad to the other; and any other use thereof, whether between the tracks or between the rails, is unwarranted.The right of way and of use, when not used or required for the purpose of passage across the railroad, belongs to the railroad company, and may be used by it in the same manner as if no street crossing was there."

The court erred in refusing to charge and instruct the jury, in accordance with the defendant's request, that damages could only be estimated during the minority of the girl, and, in his general charge, so qualifying it as to allow the jury to find the "probable care and pecuniary benefit they would have received for the balance of her probable life."We submit that the damages are limited to her minority.Such is the rule in Indiana: Mayhew v. Burns, 2 N.E.Rep. 793;Pennsylvania Co. v. Lilly,73 Ind. 252.So in Pennsylvania: Pennsylvania R. Co. v. Adams,55 Pa.St. 499;Railroad Co. v. Kirk,90 Pa.St. 15;Lehigh Iron Co. v. Rupp, 7 Amer. & Eng. R. Cas. 29;Caldwell v. Brown,53 Pa.St. 453.So in Maryland: State v. Baltimore & O.R. Co.,24 Md. 107.In Illinois: Rockford, R.I. & St. L.R. Co. v. Delaney,82 Ill. 198.In Iowa: Walters v. Chicago, R.I. & P.R. Co.,36 Iowa, 458.In New Jersey: Telfer v. Northern R. Co.,30 N.J.Law, 198.In New York: McGovern v. New York, etc., R. Co.,67 N.Y. 417.So in Arkansas: St. Louis & I.M. Ry. Co. v. Freeman,36 Ark. 41, 4 Amer. & Eng. R. Cas. 608.So in Minnesota: Robel v. Chicago, M. & St. P. Ry. Co.,27 N.W. 305.And so in Missouri: Rains v. St. Louis, I.M. & S. Ry. Co.,71 Mo. 164, 5 Amer. & Eng. R. Cas. 610;Frick v. St. Louis, K.C. & N. Ry. Co.,75 Mo. 542, 10 Amer. & Eng. R. Cas. 776.

CHAMPLIN, J.

On a bright, cold morning in January, 1886, Betsey M. Kisler, a little girl of 11 years of age, started for school in the village of White Pigeon.She was residing with her grandmother, whose house was situated south of defendant's railroad.The school-house was on the north side of such railroad, and a considerable distance therefrom.Kalamazoo street is the main thoroughfare crossing defendant's road in the village of White Pigeon, over which those who reside south of the road pass in reaching the main part of the village.Defendant's road runs nearly east and west at this point, curving slightly to the south as it proceeds west.There are three tracks crossing Kalamazoo street,--� main track, which lies furthest to the north, and two side tracks.Three freight trains had arrived at the station on the morning in...