Indianapolis, Peru And Chicago Railway Co. v. Pitzer
| Decision Date | 14 April 1886 |
| Docket Number | 12,064 |
| Citation | 6 N.E. 310,109 Ind. 179 |
| Parties | The Indianapolis, Peru and Chicago Railway Company v. Pitzer |
| Court | Indiana Supreme Court |
C. B Stuart and W. V. Stuart, for appellant.
J. W Kern, J. C. Blacklidge, W. E. Blacklidge and B. C. H. Moon, for appellee.
The material allegations of the appellee's complaint are these: That the son of the appellee, aged seven years and two months, without the fault or negligence of his parents, wandered to the depot of the appellant, in the city of Kokomo, and was carelessly and negligently permitted to get on one of its passenger trains which stopped for five minutes at that depot; that the child was carried to Jackson station; that the conductor of the appellant's train "wrongfully, carelessly and negligently put the child, Arthur Pitzer, off at that station, without leaving him in charge of any person, or giving any one instructions concerning him;" that the conductor well knew that Arthur Pitzer had been carried to that point through the carelessness and negligence of the agents and employees of the defendant; that the child, having been thus wrongfully put off the train at Jackson station, without being placed under the control or in the charge of any person, and without the fault or neglect of his parents, was casually upon the track of the defendant at a point on the line thereof, at or near where a highway crossed it, about one and one-fourth miles north of Jackson station; that, at that point, between the hours of four and five o'clock p. m., he was run over and killed by a freight train of the appellant; that although he was on the track at a place where he could be seen, and was seen, by the trainmen for a distance of three-fourths of a mile, no signals of warning were given, but without such signals, and without any effort to stop the train, the employees of the defendant ran the train upon him, although there was an ascending grade, and the train could easily have been stopped.
We regard it as quite clear that the appellant was not in fault for allowing the child to get upon the train. If in any event a railroad company could be made liable for carelessly permitting a person, young or old, to get upon one of its passenger trains, it can not be made liable in such a case as that stated by the complaint. It does not appear that the child was not, so far, at least, as the servants of the appellant could observe, in company with adult persons who entered the train at the city of Kokomo, nor does it appear that the appellant's employees knew, or could have known, that he had no right to take passage. We suppose it to be perfectly clear that a child of tender years may enter a railroad train without subjecting the company to the charge of negligence, and that the mere failure to keep a child off the train will not supply a foundation for an action. We know of no principle that requires railroad companies to keep watch to prevent persons, young or old, from entering their passenger trains at a regular station. If in any case of this character a railroad company can be made liable for allowing a child to enter one of its passenger trains, it can only be a case where facts are stated showing that it was wrong to permit the child to get upon the train, and here there are no such facts pleaded. We conclude, therefore, that the mere fact that the child was permitted to enter the passenger train creates no cause of action against the appellant, for he entered the train as an intruder. Intruders, infants or adults, can not, as a general rule, impose any duties upon the person on whose property they intrude. Lary v. Cleveland, etc., R. R. Co., 78 Ind. 323 (41 Am. R. 572); Everhart v. Terre Haute, etc., R. R. Co., 78 Ind. 292 (41 Am. R. 567); State, ex rel., v. Harris, 89 Ind. 363 (46 Am. R. 169), see p. 366; Nave v. Flack, 90 Ind. 205 (46 Am. R. 205), see p. 206; Evansville, etc., R. R. Co. v. Griffin, 100 Ind. 221 (50 Am. R. 783); Hestonville, etc., R. W. Co. v. Connell, 88 Pa. 520 (32 Am. R. 472); Morrissey v. Eastern R. R. Co., 126 Mass. 377 (30 Am. R. 686); Gavin v. City of Chicago, 97 Ill. 66 (37 Am. R. 99); McAlpin v. Powell, 70 N.Y. 126 (26 Am. R. 555); Snyder v. Hannibal, etc., R. R. Co., 60 Mo. 413; Zoebisch v. Tarbell, 10 Allen 385; Brown v. European, etc., R. W. Co., 58 Me. 384; Baltimore, etc., R. R. Co. v. Schwindling, 101 Pa. 258 (47 Am. R. 706); Atchison, etc., R. R. Co. v. Flinn, 24 Kan. 627.
These cases are to be discriminated from those in which one places dangerous agencies where trespassing children are likely to be injured by them; for here the company did what it was perfectly lawful for it to do, and that was, to run a passenger train in the manner in which such trains are usually managed. The class of cases to which we refer, although numerous, have no application here. Of this class the following are representative cases: Binford v. Johnston, 82 Ind. 426 (42 Am. R. 508); Dixon v. Bell, 5 M. & S. 198; Lynch v. Nurdin, 1 Q. B. 29; Carter v. Towne, 98 Mass. 567; Railroad Co. v. Stout, 84 U.S. 657, 17 Wall. 657, 21 L.Ed. 745; Bird v. Holbrook, 4 Bing. 628; Birge v. Gardner, 19 Conn. 507; Keffe v. Milwaukee, etc., R. W. Co., 21 Minn. 207 (18 Am. R. 393); Nagel v. Missouri, etc., R. W. Co., 75 Mo. 653 (42 Am. R. 418); Evansich v. Gulf, etc., R. W. Co., 57 Tex. 126 (44 Am. R. 586); Townley v. Chicago, etc., R. W. Co., 53 Wis. 626, 11 N.W. 55; Bransom v. Labrot, 81 Ky. 638 (50 Am. R. 193); Kansas, etc., R. R. Co. v. Fitzsimmons, 22 Kan. 686 (31 Am. R. 203).
The cases last cited all recognize the rule that children of tender years are not to be treated as persons of mature years. This is a reasonable and humane rule, and any other would be a cruel reproach to the law; but the law merits no such reproach, for, throughout all its branches, whether of tort or contract, there runs, like the marking red cord of the British navy, a line distinguishing children of years too few to have judgment or discretion, from those old enough to possess and exercise those faculties. This is a doctrine taught by every man's experience, and sanctioned by our law. A departure from it would shock every one's sense of justice and humanity. Cases very closely resembling the present recognize and enforce this distinction, and without substantial diversity of opinion the general principle is recognized, although there is not entire uniformity in its application. Dr. Wharton, in discussing the general subject, says: "The protection of the helpless from spoliation is one of the cardinal duties of Christian civilization; and when those so helpless are young children, this duty is aided both by the instincts of nature and the true policy of the State." Wharton Neg., section 313. Mr. Thompson says: 1 Thompson Neg. 452. Another author says: "When the trespasser is an infant, the railway company, on the one hand, is held bound to exercise a higher degree of care and caution than is required as to adults, and the infant, on the other hand, is not required to exercise a discretion and prudence beyond its years, but only that measure of sense and judgment which it may reasonably be expected to possess in view of its age." Beach Cont. Neg. 211. Cases in great numbers might be collected supporting the general doctrine declared by these authors, and applying it to almost every conceivable phase of the question, but we deem it unnecessary to cite these cases, as there is little, if any, diversity of opinion. The principle of which we are speaking supplies the initial proposition for this discussion, since it enables us to declare that the conductor was bound to use much greater care in dealing with a child of seven years than he would have been required to exercise respecting an older person. The care exercised by him was not such as under the circumstances it was his duty to exercise. Expelling from the train, miles from its home, a child so young as to be incapable of taking care of itself or of comprehending the danger of its situation, without asking any one to give it attention or look after its safety, was not such care as humanity and justice require; but we do not place our decision upon this point alone, for we think that the conductor's want of care must be taken in conjunction with the wrong of the engineer and those in charge of the freight train, in negligently failing to stop the train when it was within their power to do so before it ran upon the child. These two leading facts, when combined, make a case establishing negligence on the part of the appellant, and excluding contributory negligence on the part of the child. We can not undertake to comment upon all of the many cases which declare principles that rule such cases as this, but we deem it not unprofitable to refer to some of the decisions which light our way to a just conclusion.
In Louisville, etc., R. R. Co. v. Sullivan, 81 Ky. 624 (50 Am. R. 186), a man, so drunk as to be helpless mentally and physically, was put off a railroad train, on a cold winter night, by a conductor who knew his condition. The passenger so ejected from the train was severely frozen, and in a very strongly-reasoned opinion the company was held liable. The doctrine of this case is perhaps an extreme one and to be carefully limited, yet it is not easy to answer the reasoning of...
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