Elwood Electric St. Ry. Co. v. Ross

• Citation: 58 N.E. 535,26 Ind.App. 258
• Parties: ELWOOD ELECTRIC ST. RY. CO. v. ROSS.
• Decision Date: 01 November 1900
• Court: Court of Appeals of Indiana

26 Ind.App. 258

58 N.E. 535

ELWOOD ELECTRIC ST. RY. CO.

v.ROSS.¹

Appellate Court of Indiana.

Nov. 1, 1900.

Appeal from superior court, Madison county; Henry C. Ryan, Judge.

Action by James B. Ross against the Elwood Electric Street-Railway Company. From a judgment in favor of the plaintiff, and from an order overruling a motion for a new trial, defendant appeals. Affirmed.

Greenlee & Call, for appellant. F. W. Cady and Goodykoontz, Ballard & Campbell, for appellee.

WILEY, J.

Appellee sued appellant to recover damages for the alleged negligent killing of his infant child. The complaint was in a single paragraph, to which a demurrer, for want of facts, was addressed and overruled. The issue was joined by an answer in denial. Trial by jury, resulting in a general verdict for appellee. With the general verdict the jury found specially as to certain facts by way of answers to interrogatories. Appellant's motion for judgment on the answersto interrogatories and for a new trial were respectively overruled. These three adverse rulings are assigned as errors, and will be considered in the order stated.

The complaint avers: That appellee was the natural father of the deceased child, and that as such he would have been entitled to all her earnings from the time of her death to the time of her majority, had she lived, subject to her proper care, maintenance, and support. That appellant owned and operated a street railway in the city of Elwood, and ran its cars over and upon East Main street, in said city. That on the 16th of October, 1896, his said infant daughter Ruth was 4 years, 9 months, and 21 days old, and lived with her grandparents at No. 2414 East Main street, in said city, with whom she had lived from her birth. That about 4 o'clock in the afternoon of said day said child was lawfully upon said street, within 100 feet of her home, in plain view and calling distance of her grandmother, and was in the act of crossing said street with a playmate of her own age. That said East Main street, both east and west of said house, is perfectly straight for a distance of over one-half mile in both directions, so that any one on said street opposite said house can be seen for a long distance. That said child was in the act of crossing said street near her home, and that appellant, in disregard of her rights, was running and operating a defectively constructed car along and over its said track on said street, going from the east towards the west. That said car was so negligently and defectively constructed that it was not equipped with any fender or other appliance to prevent a person who might be struck by said car from being thrown beneath the wheels thereof, and run over; and that said car was so carelessly and negligently constructed, by reason of the absence of such fender, that a person being struck thereby, and felled in front of the car, would necessarily be run over, unless such car was instantly stopped. That said car was being run at a great rate and unreasonable rate of speed, to wit, 10 miles per hour, until almost upon said infant child as she was crossing the street, and until it was too late to stop the car before running upon her. That said infant child was in full view of the servant of appellant who was in charge of said car, and that it was run upon, against, and over the body of said child, and on account of the absence of any fender, as aforesaid, she was thrown beneath the car in front of the wheels, run over, and instantly killed. It is also averred that the death of said child was caused without any fault or negligence of appellee, or its grandparents, with whom she was living, and that her earnings accruing to appellee, above her care, maintenance, etc., would have been $3,000.

The first objection made to the complaint is that it does not aver that appellee had the care, control, and custody of the child, or was in any manner entitled to her services and earnings. The complaint avers that at the time of the accident resulting in the death of the child she was living with her grandparents. Such allegation does not necessarily mean that appellee did not have the care and control of her. An infant child may live with some one other than its father, and yet be under his control. The father is the natural guardian of his infant child, and is charged with its care and maintenance, and, unless emancipated, is entitled to its earnings. The failure to specifically charge in the complaint that the child was under the care, custody, and control of appellee does not make it bad. The suggestion that the complaint is bad because it does not aver that appellee was entitled to the services and earnings of the child does not seem to be well grounded. The complaint does aver that appellee would have been entitled to her services had she lived. As the law gives to the father the services and earnings of his infant child, and as the complaint avers that he was its natural father, we think the complaint is sufficient in this regard.

The next objection urged to the complaint is that it fails to show actionable negligence on the part of appellant. This objection is well taken if no actionable negligence is charged, for this is the foundation of appellee's right of action. If the complaint charges negligence, it rests upon two propositions: (1) An improperly constructed car, in that it was not fitted with a fender; (2) the child was in full view of the servant in charge of the car, and, considering her tender years, ran the car at a high rate of speed, and did not check its speed when he saw her possible danger in time to avert the accident. The rate of speed at which the car was running was not in itself negligence. A street-railway company, in the discharge of its duties to the traveling public, is required to run its cars at regular intervals, and on time; and there are no allegations in the complaint from which we can say that the speed of the car was in itself negligence. See Rack v. Railway Co. (Ill. Sup.) 50 N. E. 668. Passing the question as to whether it was negligence in failing to have a fender on the front end of the car while it was being run, we will consider the question of running the car in full view of the child by the servant in charge of the car at a high rate of speed, without checking its speed, etc. The discussion of this question involves the consideration of whether or not the child was sui juris or non sui juris. The complaint is unquestionably bad for a failure to allege that the accident occurred without the fault or negligence of the child, unless we can say from the whole complaint that it was of such tender years that it could not be chargeable with discretion and care. The rule respecting contributory negligence presupposes sufficient intelligence to know the existence of danger. Walters v. Railroad Co., 41 Iowa, 71. The law does not fix or designate any certain age at which children are of sufficient intelligence to have imposed upon them the full degree of care incumbent upon persons of mature age. Railway Co. v. Simpson, 60 Tex. 103. It is an ancient rule, sustained by the great weight of authority, that contributory negligence cannot be imputed to a child when of such tender years that it is, by legal presumption, incapable of judgment or discretion. Iron Co. v. Brawley, 83 Ala. 371, 3 South. 555; Railway Co. v. Baker, 33 Ark. 350; Railroad Co. v. Stout, 17 Wall. 660, 21 L. Ed. 745;Twist v. Railroad Co., 39 Minn. 164, 39 N. W. 402. Up to a certain age, the precise limit of which cannot well be defined, a child is incapable of contributory negligence, and the court may so declare as a matter of law. Children ranging in age from 18 months to 6 years, and even under 7, have been declared, as a matter of law, to be incapable of such negligence. Railway Co. v. Wilcox, 138 Ill. 370, 27 N. E. 899; Walters v. Railroad Co., supra; Kay v. Railroad Co., 65 Pa. St. 269; Schmidt v. Railway Co., 23 Wis. 186; Railroad Co. v. Ryan, 131 Ill. 474, 23 N. E. 385; Railroad Co. v. Ormsby, 27 Grat. 455;Keyser v. Railway Co., 56 Mich. 559, 23 N. W. 311; Mascheek v. Railroad Co., 3 Mo. App. 600; Mangam v. Railroad Co., 38 N. Y. 455;Railway Co. v. Schuster, 113 Pa. St. 412, 6 Atl. 269; Railroad Co. v. Gregory, 58 Ill. 226;Westerfield v. Levis, 43 La. Ann. 63, 9 South. 52;Buck v. Power Co., 46 Mo. App. 555;Tobin v. Railway Co. (Mo. Sup.) 18 S. W. 996; Railroad Co. v. Bowen, 49 Ind. 154; Railroad Co. v. Wolf, 59 Ind. 89;Railway Co. v. Vining's Adm'r, 27 Ind. 513;Railroad Co. v. Pitzer, 109 Ind. 179, 6 N. E. 310, 10 N. E. 70; Railroad Co. v. Tappenbeck, 9 Ind. App. 422, 36 N. E. 915. It is now the settled law that a child is held, so far as he is personally concerned, only to the exercise of such care and discretion as is reasonably to be expected of children of his age. Shear. & R. Neg. § 73; Railroad Co. v. Tappenbeck, supra; Railroad Co. v. Pitzer, supra. In Railroad Co. v. Tappenbeck, supra, it was said: “The distinction between infants who are presumed to be non sui juris and those who are presumed to be sui juris grows out of the question of capacity. In those cases where, by reason of the tender years of the child, the courts say, as a matter of law, that the injured child was non sui juris, it is not necessary, in an action by the parent, to either aver or prove that the child was without fault,” etc. In the case of Railway Co. v. Stoddard, 10 Ind. App. 278, 37 N. E. 723, this court held that a child five years of age is non sui juris, and incapable of contributory negligence. From the averments of the complaint as to the age of the child, and the authorities we have cited, we are led to the conclusion that it was non sui juris, and hence it was not necessary to aver that it was without fault or negligence. This conclusion makes plain the duty of a street-railway company in running its cars on streets where such children have a right, and where they are likely, to be. In this case the...