Davis v. Seaboard Air Line Ry.

• Decision Date: 04 October 1904
• Citation: 48 S.E. 591,136 N.C. 115
• Parties: DAVIS v. SEABOARD AIR LINE RY.
• Court: North Carolina Supreme Court

48 S.E. 591

136 N.C. 115

DAVIS v. SEABOARD AIR LINE RY.

Supreme Court of North Carolina

October 4, 1904

Appeal from Superior Court, Vance County; Councill, Judge.

Action by H. A. Davis, administrator of his infant son, deceased against the Seaboard Air Line Railway. Judgment for plaintiff, and defendant appeals. Reversed.

In an action against a railroad for the death of a person resulting from being struck by a train, evidence as to the distance within which the train could have stopped is admissible; it being a matter of common knowledge and observation, of which the jury could take notice, even without evidence.

J. H Bridgers and W. H. Day, for appellant.

A. C Zollicoffer and T. T. Hicks, for appellee.

CLARK C.J.

This is an action under Code, § 1498, by the plaintiff, as administrator of his infant son, 2 1/2 years old, who, having wandered off without the knowledge of its parents, was injured on the track of the defendant, by its train, so that the child died, and the plaintiff alleges this was by the negligence of the defendant.

The defendant, among other exceptions, excepted to a refusal to nonsuit at the close of the evidence, and asks us to overrule Russell v. Steamboat Co., 126 N.C. 961, 36 S.E. 191 in which it was held that "an action may be maintained by the administrator under Code, § 1498, for the death by the wrongful act of another of an infant a few months old." That decision is fully sustained by the reasoning and authorities there set out, and meets our renewed approval.

The objection to the admission of photographs of the child just before its injury, and also thereafter, but before its death, cannot be sustained. Photographs frequently convey information to the jury and the court with an accuracy not permissible to spoken words, if their admission is properly guarded by inquiry as to the time and manner when taken. The admission of this species of evidence was, it is true, somewhat questioned (by a divided court) when presented in this court for the first time. Hampton v. Railroad, 120 N.C. 534, 27 S.E. 96, 35 L. R. A. 808. But they have since become a well-recognized means of evidence, and are not infrequently used on trials below, and are sometimes sent up in the record on appeal, especially in actions for personal injuries.

Nor can we sustain the exception as to evidence of the distance within which the train could be stopped. Blue v. Railroad, 117 N.C. 644, 23 S.E. 275. Indeed, the jury can take notice thereof as a matter of common knowledge and observation, without evidence. Wright v. Railroad, 127 N.C. 227, 37 S.E. 221, citing with approval Lloyd v. Railroad, 118 N.C. 1013, 24 S.E. 805, 54 Am. St. Rep. 764, and Deans v. Railroad, 107 N.C. 693, 12 S.E. 77, 22 Am. St. Rep. 902.

The real point in the case is in the refusal of the court to submit the issue of contributory negligence, upon the ground that negligence would not be imputed to the infant. This is true in an action in behalf of an infant. Bottoms v. Railroad, 114 N.C. 699, 19 S.E. 730, 25 L. R. A. 784, 41 Am. St. Rep. 799, approved in Smith v. Railroad, 114 N.C. 749, 19 S.E. 863, 923, 25 L. R. A. 287, and Duval v. Railroad, 134 N.C. 349, 46 S.E. 750. A different rule was laid down in Hartfield v. Roper, 21 Wend. 615, 34 Am. Dec. 273, known as the "New York rule"; but that ruling has been severely criticised, and has been more denied than followed in other states. One of the most pungent criticisms is to be found in Newman v. Railroad, 52 N. J. Law, 446, 19 A. 1102, 8 L. R. A. 842. What is known as the "English rule" was laid down in Waite v. Railroad, 1 E., B. & E. 719, and denies a recovery only in cases where the parent or custodian is present and controlling the infant, and negligently contributed to the injury. This is followed in this country by the Massachusetts courts alone. The doctrine generally sustained is that of Robinson v. Cone, 22 Vt. 213, 54 Am. Dec. 67, known as the "Vermont rule," and is followed by us in Bottoms v. Railroad, supra, and which we deem still the proper rule. This latter rule has the weight of authority in judicial decisions and standard law writers. That eminent text writer, Mr. Bishop (Noncontract Law, § 582), criticising the New York rule, says: "This new doctrine of imputed negligence, whereby the minor loses his suit, not only where he is negligent himself, but where his grandfather, grandmother, or mother's maid is negligent, is as flatly in conflict with the established system of the common law as anything possible to be suggested. The law never took away a child's property because his father was poor or thriftless or a scoundrel, or because anybody who could be made to respond to a suit for damages was a negligent custodian of it." The subject is also discussed in Wharton, Neg. § 314; Beach, Cont. Neg. §§ 38-48, 127-130. Mr. Beach says that the New York doctrine "is an anomaly, and in striking contrast with the case of a donkey exposed in the highway and negligently run down and injured (Davies v. Mann), or with oysters in the bed of a river injured by the negligent operation of the vessel, in both of which cases actions have been maintained," and he adds: "If the child were an ass or an oyster, he would secure a protection denied him as a human being. He is not the chattel of his father, but has a right of action for his own benefit when the recovery is solely for his use." See, also, Ward v. Odell, 126 N. C., bottom of page 948, 36 S.E. 194. Shearman & Redfield, Neg. § 78, also holds that the Vermont rule "is the true rule, and is abundantly justified by the reasoning of the courts which in more than 20 states have adopted it," among them Alabama, Arkansas, Connecticut, Georgia, Illinois, Iowa, Louisiana, Michigan, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, North Carolina, Ohio, Pennsylvania, Tennessee, Texas, Utah, Virginia, and Vermont, the decisions of whose courts are cited. Also 1 Fetter, Carriers, § 199, p. 532. These authorities hold that "although a child or idiot or lunatic may have escaped into the highway through the fault or negligence of its keeper, and so be improperly there, yet if he is hurt by the negligence of the defendant, he is not barred of recovery. A greater degree of watchfulness is imposed on the other party, and what would be ordinary neglect in regard to one supposed to be of full age and capacity would be gross negligence as to a child or one known to be incapable of escaping danger. The child, so far as he is personally concerned, is held only to such degree of care as should be expected of a child of his age."

When however, the parents are authorized, as in some states, to bring an action, their contributory negligence can then be pleaded (S. & R. Neg. § 71; Williams v. Railroad, 60 Tex. 205; Westerberg v. Railroad, 142 Pa. 471, 21 A. 878, 24 Am. St. Rep. 510), provided the parent be actually in fault (S. & R. Neg. § 72). The same rule applies where the parent is suing as administrator, but is also the beneficial...