McGuire v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 02 January 1889
• Citation: 37 F. 54
• Parties: McGUIRE v. CHICAGO, M. & ST. P. RY. CO.
• Court: U.S. District Court — District of Minnesota

37 F. 54

McGUIRE v. CHICAGO, M. & ST. P. RY. CO.

United States Circuit Court, D. Minnesota.

January 2, 1889

Flandrau, Squires & Cutcheon, for the motion.

Forrest & Van Cleve, contra.

NELSON, J., (after stating the facts substantially as above.)

A correct decision of this motion depends upon whether or not the boy was negligent as a matter of law in going upon the tracks and attempting to cross as he did. If an adult had been injured under the same circumstances, instead of a child about 10 years of age, I should have little hesitation in granting the motion. I feel satisfied, however, that this case was a proper one for the jury upon the question of contributory negligence, and I do not think that the court erred in refusing to instruct them that the act of the boy in attempting to cross the tracks was negligence as a matter of law. The caution required of the boy was according to his age and capacity, to be determined by the facts and circumstances developed on the trial. While I held that the boy was capable of exercising some degree of care, still he was not subjected to the same rules of conduct as an adult. I instructed the jury that it was incumbent upon the boy to exercise vigilance for his safety, yet only such care was required of him as could reasonably be expected of a child of his age and capacity. I put it to the jury to determine whether he did exercise such care, and the verdict did not sustain the defense of contributory negligence. It is a close case, and not free from doubt. If I am wrong, the remedy of the defendant is clear. Motion for new trial denied.