Dubiver v. City & S. Ry. Co.

• Decision Date: 01 March 1904
• Citation: 75 P. 693,44 Or. 227
• Parties: DUBIVER v. CITY & S. RY. CO.
• Court: Oregon Supreme Court

75 P. 693

44 Or. 227

DUBIVER v. CITY & S. RY. CO.

Supreme Court of Oregon

March 1, 1904

On petition for rehearing. Denied.

For former opinion, see 74 P. 915.

Bernstein & Cohen, opposed.

WOLVERTON J.

It was not our purpose by the main opinion handed down herein, as it seems to be suggested by the petition for rehearing, to hold to the doctrine " that, where the interests and actions of an infant are involved, a trial judge can in no case declare as a matter of law that there has been contributory negligence." We said, it will be observed, "there are cases, properly decided, too, where the courts have said as a matter of law that the minor, considered as yet immature, was guilty of such contributory carelessness and negligence that he ought not to recover," and in support thereof we cited several authorities. In line with this view are some of the cases cited by counsel in their petition for rehearing. Notably is the case of Rudd's Adm'r v R. & D. Railroad Co., 80 Va. 546, where a boy of 12 sent by his parents to mind the cows in a field along a railway, went to sleep on the track, and was run over and killed by a freight train, and it was held that notwithstanding his immature years, he was guilty of such contributory negligence that his administrator could not recover. Another is Masser v. Railroad Co., 68 Iowa 602, 27 N.W. 776, where a boy between 11 and 12 years was killed while crossing the tracks of a railroad. The court said in that case: "A boy 11 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 amid 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. If the question was as to whether the deceased was guilty of contributory negligence in the mere act of stepping backward upon the defendant's track when the Fort Dodge train passed, the case would be different. The deceased evidently lost his presence of mind somewhat, and he might not have been guilty of negligence in what he did then, even though he did not govern himself with the prudence which might reasonably have been expected of an adult. But his negligence consisted in going, in the outset, and in remaining, where he incurred the danger of losing his presence of mind." Of like import are the cases of Twist v. Winona & St. Peter R. Co., 39 Minn. 164, 39 N.W. 402, 12 Am.St.Rep. 626, and Merryman v. Railroad Co., 85 Iowa, 634, 52 N.W. 545, both of which arose from accidents about turntables, and in all these cases the injured parties were trespassers. In the Twist Case the court say: "The law very humanely does not require the same degree of care on the part of a child as of a person of mature years, but he is responsible for the exercise of such care and vigilance as may reasonably be expected of one of his age and capacity, and the want of that degree of care is negligence." Yet, in spite of the fact that the child injured was less than 10 1/2 years of age, the court held it to have been guilty of contributory negligence as a matter of law. In the case at bar neither the lower court nor this court was asked to say as a matter of law whether the minor was guilty of contributory negligence. There was no motion for a nonsuit or an instructed verdict, nor was all the evidence brought here in the bill of exceptions so that we could determine that question if it had been urged.

We cannot say, of course, whether, had the question been before us, the result would or would not have been different, in view of the authorities cited both here and in the main opinion. The single question presented, however, was whether the court erred in instructing that the jury should take into consideration the age of the minor, and determine whether he used the care and prudence which an ordinarily prudent boy of his age would be expected to exercise. It was urged that the instruction should not have been given because the boy was fully acquainted with the business in which he was engaged, and knew the danger of crossing the tracks of the defendant's railway as well as if he were an adult, took like precautions in crossing in the present instance as an adult would have taken or was required to take, and offered proofs of the exercise of that kind of care. It should be noted that, with the exception of the last one, the reasons advanced as a basis for the objection are deductions drawn from the evidence, which in some manner, at least, is susceptible of a different construction. The question, therefore, resolved itself into this, as stated in the main opinion, whether this boy, of the age of 15 years, had arrived at man's estate in judgment, prudence, and foresight; for, if he had not, the instruction, although given unasked, was not inappropriate. The entire case turned upon whether he was guilty of contributory negligence in driving off the tracks after he had started to cross them, the defendant's theory being that he stopped, or practically so, by turning his horse's head and the fore wheels of the wagon parallel with the track. But as to this there was a dispute in the evidence, so far as disclosed by the record, and the question presented is not whether he was guilty of contributory negligence notwithstanding he was a minor, but whether he was an adult to all intents and purposes notwithstanding he was but 15 years of age, so that it was error to instruct at all that the jury should take his age into consideration. If the case was to go to the jury at all, it was not improper for it to go as it did.

The New York cases cited, namely, Reynolds v. Railroad Co., 58 N.Y. 248, and Tucker v Railroad Co., 124 N.Y. 308, 26 N.E. 916, 21 Am.St.Rep. 670, seem to proceed upon a different doctrine as to the burden...