Ploof v. Burlington Traction Co.

• Decision Date: 21 July 1898
• Citation: 41 A. 1017,70 Vt. 509
• Parties: PLOOF v. BURLINGTON TRACTION CO.
• Court: Vermont Supreme Court

41 A. 1017

70 Vt. 509

PLOOF

v. BURLINGTON TRACTION CO.

Supreme Court of Vermont. Chittenden.

July 21, 1898.

Exceptions from Chittenden county court; Taft, Judge.

Action on the cue by Louis Ploof, administrator, against the Burlington Traction Company. Plea, general issue. There was a judgment on a verdict for defendant, and plaintiff excepts. Reversed.

Seneca Haselton, E. R. Hard, and Geo. W. Deberville, for plaintiff. A. G. Whittemore and R. E. Brown, for defendant.

ROSS, C. J. This is an action to recover such damages as are Just with reference to the pecuniary injuries resulting from the death of Frank Ploof, a boy 10 years of age, to Louis Ploof, his father, the plaintiff administrator, and to his wife, the mother of Frank Ploof; the father and mother being the next of kin of Frank Ploof. The trial resulted in a verdict and judgment for the defendant The defendant, on September 4, 1896, owned and operated an electric railway in the city of Burlington. On that day one of its cars ran over the intestate, Frank Ploof, and inflicted upon him such injuries that he died in a few hours. At that time the intestate was a boy 10 years of age, healthy, and of ordinary ability. He attended the public schools, could read and write, and for about a year had sold evening papers on the street. He had gone about the city and on the streets on which the electric cars ran for the purpose of attending school and for the purpose of selling papers. On the day he was injured he had, with the consent of his parents, attended the annual fair at Howard Park, about a half mile distant from the place of the accident, and was returning for the purpose of procuring and selling the evening papers. His parents were not present at the place of the accident when it occurred, and resided some distance from it. The defendant claimed that the parents of the deceased were negligent in permitting him to go into the streets where the cars were, and at the defendant's request, against the exception of the plaintiff, the court charged: "The defendant claims that the negligence of the parents contributed to the accident; that they did not exercise ordinary care—the care of prudent persons in permitting the boy to go into the streets where the car ran. The parents were bound in this respect to exercise ordinary care,—the care of prudent persons,—and if they were negligent in permitting the boy to go to the fair and return home over Pine street, where the accident took place, the plaintiff cannot recover." The plaintiff took several other exceptions to the charge, but now insists upon this one alone. He insists that this exception should be sustained.

1. Because he contends that the recovery is in the right of the intestate, and that under the decisions of this court, the negligence of the parents contributing to the accident which injures their minor child cannot be imputed to the minor child in an action brought by the child against a third person to recover personal damages sustained through the concurring negligence of such third person. Assuming, but not conceding, that this is such an action, or one in which the administrator is seeking to recover damages sustained by the intestate, and for the benefit of the estate of the intestate, his contention is supported by Robinson v. Cone, 22 Vt. 213, 54 Am. Dec. 67, and note. That case has become a leading case against the doctrine of imputed negligence, and its doctrine is quite generally followed by courts of last resort, and indorsed by eminent legal writers. The doctrine of imputed negligence was announced in the earlier decision of Hartfield v. Roper, 21 Wend. 615, which has been followed to some extent by courts of last resort. Some such courts which early adopted the doctrine on the strength of Hartfield v. Roper have receded, and now hold the doctrine of Robinson v. Cone. Much has been written for and against the doctrine of imputed negligence. It is very fully and carefully collated and clearly set forth in the brief for the defendant. We shall take no time in reviewing the decisions on the subject. In a suit in which a minor or his administrator seeks to recover damages in the right of the minor, or in the right of his estate, for injuries inflicted upon such minor by the negligence of a party, it is difficult to find any satisfactory legal ground upon which such party can, in a court of justice, be heard to say: "True, I negligently inflicted a serious injury upon the child, but no legal obligation rests upon me to compensate the child for injuries inflicted by my negligence, because the parents of the child were negligent in the same transaction, and their negligence contributed to the happening of the accident occasioning such damages." Parents are the natural protectors and guardians of their minor children, but not their agents to waive torts committed upon them. The usual doctrine is that every joint tort feasor is liable for all the damages committed, and there is no contribution between joint tort feasors. Such excuse overturns this wholesome and Just doctrine when the negligence of the parent is involved in the wrongdoing. It would be much easier to find good reasons for holding that such an injured child might recover jointly against his parent and the third person. This court is content to abide by the decision of Robinson v. Cone on the doctrine of imputed negligence.

2. The plaintiff contends that when the recovery, as in this case, is for the benefit of the parents, the contributory negligence of such parents is no defense. Put briefly, this contention is that a parent may recover damages sustained in part by his own wrong, or damages produced by an accident to which his own negligence contributed. This contention is against the recent decision of this court in Lindsay v. Railroad Co., 68 Vt.556, 35 Atl. 513, and against the general doctrine that a party whose negligence has contributed to the happening of the accident causing him damages cannot recover, because he cannot recover for so much of such damages as he himself caused, and because the law will not, if it were possible fairly and justly so to do, trouble itself to inquire into and divide such damages between the wrongdoers contributing thereto. Again, it is practically Impossible to ascertain and divide such damages justly between the parties whose negligence has contributed to the accident causing them. In Lindsay v. Railroad Co. there is no discussion of this doctrine. But the case in facts and in principle is like the present case, and the point was taken and fully discussed, supported by a large citation of authorities, at the hearing, and fully considered by the court. The plaintiff does not contend against the soundness of the general doctrine that a plaintiff whose negligence contributes to the happening of an accident causing him damages cannot recover, but contends that this case does not fall within that class of cases; that it is governed and controlled by the statute conferring It Nor does he contend that the recovery, if had, would not be wholly for the benefit of the parents of the intestate. He insists that the statute either gives the damages in right of the intestate, or, if in the right of the parents, it gives an absolute right of recovery, regardless of the contributory negligence of such parents or next of kin. The statutes relied upon are V. S. §§ 2451, 2452. They read: "When the death of a person is caused by the wrongful act, neglect, or default of a person or corporation, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the person or corporation liable to such action, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death is caused under such circumstances as amount in law to a felony." "Such action shall be brought in the name of the personal representative of such deceased person, and commenced within two years from his decease, and the court and jury before whom the issue is tried, may give such damages as are just, with reference to the pecuniary injuries resulting from such death, to the wife and next of kin, and the amount recovered shall be for the benefit of such wife and next of kin, who shall receive the same proportions as in the...