Elwood Electric Street Railway Company v. Ross
| Decision Date | 01 November 1900 |
| Docket Number | 3,067 |
| Citation | 58 N.E. 535,26 Ind.App. 258 |
| Parties | ELWOOD ELECTRIC STREET RAILWAY COMPANY v. ROSS |
| Court | Indiana Appellate Court |
Rehearing denied February 15, 1901.
From the Madison Superior Court.
Affirmed.
C. M Greenlee and B. R. Call, for appellant.
F. W Cady, E. B. Goodykoontz, G. M. Ballard and B. H. Campbell, for appellee.
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 answers to the 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 four years, nine months and twenty-one days old, and lived with her grandparents at number 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 the 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 toward 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 and unreasonable rate of speed, to wit, ten 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 of 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 specifically to 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, he 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. Chicago, etc., R. Co., 173 Ill. 289, 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. Chicago, etc., R. 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. Houston, etc., R. Co. v. Simpson, 60 Tex. 103. It is an ancient rule, sustained by the great weight of authority, that contributory negligence can not be imputed to a child when of such tender years that it is, by legal presumption, incapable of judgment or discretion. Pratt, etc., Co. v. Brawley, 83 Ala. 371, 3 So. 555; Little Rock, etc., R. Co. v. Barker, 33 Ark. 350; Sioux City, etc., R. Co. v. Stout, 84 U.S. 657, 17 Wall. (U.S.), 657, 21 L.Ed. 745; Twist v. Winona, etc., R. Co., 39 Minn. 164, 37 Am. & Eng. R. Cas. 336, 39 N.W. 402.
Up to a certain age, the precise limit of which can not 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 eighteen months to six years, and even under seven, have been declared as a matter of law of being incapable of such negligence. Chicago City R. Co. v. Wilcox, 138 Ill. 370, 27 N.E. 899; Walters v. Chicago City R. Co., supra; Kay v. Pennsylvania R. Co., 65 Pa. 269; Schmidt v. Milwaukee, etc., R. Co., 23 Wis. 186; Chicago, etc., R. Co. v. Ryan, 131 Ill. 474, 23 N.E. 385; Norfolk, etc., R. Co. v. Ormsby, 68 Va. 455, 27 Gratt. 455; Keyser v. Chicago, etc., R. Co., 56 Mich. 559, 23 N.W. 311; Mangam v. Brooklyn R. Co., 38 N.Y. 455; Erie, etc., R. Co. v. Schuster, 113 Pa. 412, 6 A. 269; Chicago, etc., R. Co. v. Gregory, 58 Ill. 226; Westerfield v. Levis, 43 La. Ann. 63, 9 So. 52; Buck v. People's, etc., Co., 46 Mo.App. 555; Tobin v. Missouri, Pac. R. Co. (Mo.), 18 S.W. 996; Jeffersonville, etc., R. Co. v. Bowen, 49 Ind. 154; Evansville, etc., R. Co. v. Wolf, 59 Ind. 89; Pittsburgh, etc., R. Co. v. Vining, 27 Ind. 513; Indianapolis, etc., R. Co. v. Pitzer, 109 Ind. 179, 6 N.E. 310; Terre Haute, etc., R. 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. 1 Shearm. and Redf. on Cont. Neg. § 73; Terre Haute, etc., R. Co. v. Tappenbeck, supra; Indianapolis, etc., R. Co. v. Pitzer, supra.
In Terre Haute, etc., R. Co. v. Tappenbeck, supra, it was said: etc.
In the case of Citizens' St. R. 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...
To continue reading
Request your trial