"Plaintiffs are husband and wife. Their child, eight years old, was struck and killed by a locomotive engine drawing a passenger train on defendant's road at the crossing of Warren avenue, in the city of Warrensburg. The petition charges negligence on the part of defendant's servants in charge of the engine, in this: that they failed to give a signal, by bell or whistle, of the approach of the train; that they saw, or by the exercise of ordinary care would have seen, the
child in a position of danger in time to have avoided the accident by the use of ordinary care, yet failed to do so. The answer was a general denial, and three affirmative pleas: First, negligence on the part of those having charge of the boy, in `permitting him to unnecessarily go over defendant's track at the time and place of the accident, well knowing that defendant's train was due to pass about that time'; second, negligence of the child himself in `undertaking to cross defendant's track while the train was in plain view, and known by him to be approaching said crossing'; third, that the child knew that the train was coming, and deliberately waited until it was within a short distance of him, and then recklessly attempted to cross immediately in front of the engine. Reply, general denial.
"The evidence on the part of the plaintiffs tended to show as follows: Defendant's railroad runs east and west through Warrensburg, which is a city of the third class. Warren avenue crosses the railroad at right angles in a thickly populated part of the city. The passenger station and side track of defendant are just east of Warren avenue. The train in question, headed east, approached the Warren avenue crossing from the west, running fast. The child at the same time, headed north, approached the crossing from the south, running along the east sidewalk of Warren avenue. The engine and the child reached the point of crossing at the same instant. The child was struck by the cow-catcher or the pilot beam, and was killed. The engine stopped 150 feet east of the crossing. The child and his brother, who was one year older, lived with their grandmother on Warren avenue, south of the railroad. They went to school every day. Their road to and from school was across this track. They were therefore familiar with the location. Their grandmother and their teacher had frequently warned them to be careful to look out for trains when they crossed the track. On this day the two brothers were going north along the east side of Warren avenue, starting from a point 270 feet south of the railroad. They were running—the elder in the lead. The elder got safely across, but barely escaped, while the younger was struck and killed. There was a freight train standing on a side track just east of the crossing, `with steam on and puffing,' and the attention of the boys was attracted to it as they ran along. The passenger train from the west approached the crossing at a swift speed, without giving any signal by bell or whistle. The last signal given was at the Ft. Scott crossing, a quarter of a mile west of Warren avenue. The situation was such that the engineer would have seen the boys if he had looked at any time while he was traversing a distance of 500 or 700 feet before reaching the crossing, when they were from 130 to 150 feet of it, and they would have seen the locomotive if they had looked when they and the locomotive were within the same relative distances. There was no evidence tending to show that this child saw the train coming, but he would have seen it if he had taken the precaution to look in that direction. He was therefore guilty of negligence, if a child of his maturity or lack of maturity is chargeable with negligence.
"At the close of the plaintiffs' evidence the court instructed the jury to find for the defendant. From the judgment on the verdict rendered in conformity to that instruction the plaintiffs appeal.
"It is unnecessary to set out the testimony at more length or in more detail. What is above stated tends to show that defendant's servants in charge of the locomotive were guilty of negligence in failing to give the signal required by law, and it points to that negligence as the proximate cause of the accident. It also tends to show that the engineer, seeing the children running into peril, aiming as if to cross in front of the train, could have averted the accident by stopping the train, or at least by sounding the whistle. It also tends to show conduct on the part of the deceased child that would have justified the court in giving the instruction given, on the theory of contributory negligence, if it had been the conduct of a person of mature years. This conduct on the part of the deceased child affects the plaintiffs' case based as well on one of the charges of negligence specified in the petition as on the other, if it affects it at all. Running on or in dangerous proximity to the railroad track without looking or without heeding was an act which united with the negligence of the engineer to produce the result, and although, as a general rule, the engineer, when he saw a person running towards the track, had a right to presume that that person would use his eyes and see the train, and stop to let it pass, yet if he could see, from the size of the person approaching, that it was a child too young to be counted on to exercise the required discretion, he had no right to act on that presumption. The main question, therefore, in this case, is, was this child of sufficient maturity to be held accountable for his imprudent act, as for contributory negligence? A question of this kind is sometimes one of fact, and sometimes one of law. If the facts are such that reasonable men cannot differ in opinion about them, it is a question of law for the court to decide; but, if reasonable men might reach different conclusions on the facts, then it becomes a question which the court should submit to the jury. In this case the court took it to be a question of law, and so decided it. We have said that it is sometimes a question of fact, and sometimes a question of law; and such is the form of expression frequently used by law writers on this subject, and in a certain...
