Felton v. Aubrey

Decision Date14 April 1896
Docket Number371.
Citation74 F. 350
PartiesFELTON v. AUBREY.
CourtU.S. Court of Appeals — Sixth Circuit

The plaintiff below, Thomas Aubrey, is a boy nine years old. His suit was by his father, as next friend, and was for personal injuries sustained through the alleged negligence of the plaintiff in error in the operation of the railroad committed to his charge as receiver by an order of the circuit court of the United States for the district of Kentucky. There was a verdict for defendant in error and judgment thereon. The petition alleged that the plaintiff had been run over by a train of freight cars, while he was crossing the track of defendant's railroad, within the corporate limits of the city of Lexington, Ky. The defense was that the defendant's servants had been guilty of no negligence and that plaintiff had been hurt while trying to climb upon a moving train of cars from the side of the track. The evidence tended to show that the defendant in error sustained his injury at a place where one of the railroad company's tracks crossed an open common upon a high embankment, from 20 to 25 feet above the level of the common. This common, though within the corporate limits of the city, was in the suburbs. On it were located the city workhouse and a city quarry. It was with this exception an open, uninclosed space, used for a general dumping ground. It was crossed in every direction by people residing in the neighborhood, and was to some extent used as a pasture for grazing cattle. The evidence tended to show that the track crossing it was a switch track connecting the freight depot with the main track. Regular trains did not use it, and only a switch engine moved cars over it, between a freight depot and the main track. There was evidence that it was a part of the yard track of the defendant company, though this evidence was meager, and not altogether satisfactory. The train which injured the defendant in error was composed of an engine and seven cars and was going to the freight depot. There were three cars in front of the engine, and four behind. The front car was a flat car loaded with lumber, and the rear car was also a flat car, loaded in same way. The defendant was on the commons watching or tending to cows turned out to graze. He says his cows ran up the embankment, and over the track, and down on the other side. He followed. His account of his injury is as follows: 'Q. How did you get up on the track? A. I went up that way (witness indicates his movement); kind 'a slanting up the hill. Q. Did you hear the train coming? A. No, sir. Q. How far did you walk on the track? A. I don't remember. Q. Did you go straight across the track or slanting? A. I went slanting. q. When you got up where the track was, did you hear the train coming then? A. No, sir. Q. Did you hear any whistle blown? A. No, sir. Q. Did you hear any bell rung? A. No, sir. Q. What was the first thing that attracted your attention? What did you first see or hear? A. I never saw or heard anything. Q. Where were you? Had you gone clear across the track when the cars struck you, or were you inside, between the rails? A. I was right at the rails when the train run me down. Q. On the same side or on the far side? A. On the far side. Q. You were nearly across them? A. Yes, sir. Q. What kind of a train was it? A. A yard engine train. Q. After you were hurt, what became of you? A. I took and rolled down the hill. Q. What was done then? A. A man took and brought me home. Q. What man was that? A. I don't know. It was Mr. Robinson.' On cross-examination he said: 'Q. Did you look to see if anything was coming? A. No, sir; I didn't look to see if anything was coming. Q. When you got halfway up, it was still pretty high up? A. No, sir. Q. Then you went cater-cornered across the track? A. Kind 'a cater-cornered. Q. What part of the train struck you? A. The front part. Q. Which car? A. I don't know. It was the front one. Q. Suppose you were standing on the track, and the train was coming; what would you do? A. I would get out of the way if I saw it. Q. How would you get out of the way,-- get off the track? A. Yes, sir. Q. Do you stand on the railroad track without looking to see if anything is coming? A. Of course, I would look to see if anything was coming. Q. Whenever you would go on the railroad track you would look? A. Never was upon it. Q. You mean except that morning you was hurt? A. Yes, sir. Q. Di you look that morning? A. No, sir. Q. If you had seen the train, would you have gone upon the track? A. No, sir; I would have went back if I had any show to. Q. What do you mean by that? A. If I would be on the track, and would see it coming, if I could get out of the way, I would get out of the way. Q. Do you remember any boy getting up on the cars that day? A. No, sir. Q. Didn't you try to get up on the cars that day? A. No, sir. Q. Never saw the freight car and try to get upon it? A. No, sir.' There was other evidence tending to show that he was struck by the car in front and while crossing the track, some of which also tended to show that he must have gone upon the track immediately in front of the approaching train. So there was evidence of a negative character, tending to show that there was no person on the front of this train on the lookout, and that no bell was sounding. There was some conflict as to the speed was not in excess of five or six miles per hour. Upon the part of the defense there was evidence tending strongly to show that the defendant in error did not appear upon the track in front of the train at all, and was not run over by any car in front of the engine, but that from a place on the side of the track he undertook to climb upon one of the cars behind the engine, lost his hold, and was run over. This switch track ran upon the embankment for some 600 feet without being crossed at grade by any street. The accident occurred about midway between the two streets crossing at grade. There was evidence that this track was frequently crossed by people crossing the common. At the southern end of the embankment there was a sign on which was inscribed, 'No trespass.' Under objection, an ordinance of the city of Lexington was admitted as evidence, limiting the speed of trains within the city to six miles per hour, and requiring that the bell should be rung while passing through the city. At the conclusion of the whole evidence, a motion by the plaintiff in error for a peremptory instruction in his favor was disallowed.

C. B. Simrall, for plaintiff in error.

John R. Allen, for defendant in error.

Before TAFT and LURTON, Circuit Judges, and HAMMOND, J.

LURTON Circuit Judge, after making the foregoing statement of facts, .

There was a very sharp conflict in the evidence upon the vital question as to whether the defendant in error appeared on the track in front of the train, or whether, from the side of the road, he undertook to grab and climb up on a car as it passed him. If the evidence of the injured boy is credited, he did not undertake to climb upon the cars, but was overtaken as he was crossing the track in front of the train. In this aspect of the case, it became very material to determine whether the defendant in error was himself in the exercise of ordinary care and caution. He says in his own evidence that he neither saw nor heard the approaching train, and that he did not look to see if anything was approaching. It was broad daylight. There was nothing to prevent him from seeing if he had looked. Clearly, on this admission, a responsible adult would have been guilty of such gross negligence as to defeat any recovery, unless the railway company, after discovering his situation in time to have avoided injury to him, used no exertion to ward off the danger. The defendant was an infant of nine years, and it would be unreasonable to require from an infant so high a degree of care and watchfulness for his own safety as would be ordinarily exercised by a person of more mature years and sounder discretion. From an infant of tender years less discretion and intelligence is required than from an adult. The degree of care and caution to be required from a child circumstanced as this boy was would depend upon his age, experience at such places, and his intelligence. The prudence and caution due from such a boy should be measured by his comparative maturity and capacity, and each case must depend upon the facts and circumstances of that case. Railroad Co. v. Gladmon, 15 Wall. 401; Railroad Co. v. Stout, 17 Wall. 657. The care and prudence to be required of a boy nine years of age is that to be reasonably expected from such a boy, or from boys of that age, looking to his habits and knowledge of the danger to be apprehended. Reynolds v. Railroad Co., 58 N.Y. 248; Barry v. Railroad Co. v. 92 N.Y. 290; Wood. R.R. (Ed. 1893) 1470, 1471; Railroad Co. v. Hoehl, 12 Bush, 41. But if, on the other hand, the defendant in error was not on the track, nor near enough to be struck by a passing train, nor in a position in which he appeared to be in danger, or about to get into danger, and from the side of the track undertook to grab and climb upon a moving train, his immaturity of years and discretion would have no bearing whatever. In such case the railway company would be guilty of no negligence, and the injury sustained by the defendant in error would not be the result of any fault or breach of duty by the railway company. If there was a no breach of duty, then there was no wrong, irrespective of the boy's capacity to know that what he was doing was dangerous. We do not think this distinction was made plain to the jury. Upon this point, the court, in discussing the effect of the contributory negligence of the defendant in error, said:

'Did the complainant himself cause the injury by
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