Pratt Coal & Iron Co. v. Brawley

• Decision Date: 02 February 1888
• Citation: 3 So. 555,83 Ala. 371
• Court: Alabama Supreme Court
• Parties: PRATT COAL & IRON CO. v. BRAWLEY.

3 So. 555

83 Ala. 371

PRATT COAL & IRON CO. v. BRAWLEY.

Supreme Court of Alabama

February 2, 1888

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

Action for damages for personal injuries to a child. The action was brought by Neil Brawley, the father of Jennie Brawley, an infant seven years of age, to recover damages done to and sustained by the said Jennie Brawley, against the Pratt Coal & Iron Company, a corporation organized under the laws of the state of Alabama, and operating a railroad from the city of Birmingham out to the Pratt coal mines, in the county of Jefferson, state of Alabama. The injury alleged was the running over the said Jennie Brawley by one of the trains or engines being operated on the said road, and under the management of the defendant corporation. The complaint contained two counts: one to recover for the injury sustained by the child, causing her great bodily pain and suffering and the other for the loss by the father, on account of the loss of the services of the child. The defendant demurred to the complaint, on the ground that it showed that the child was a trespasser on the track of the company; that there were no allegations in the complaint that tended to show that the defendant did not use all due diligence in trying to prevent the injury to the child; and that the complaint does not allege that the defendant's employes saw the child before the injury was inflicted; and that, as the child was trespassing on the road-bed of the company, she thereby contributed to the injury. The court overruled these demurrers, severally and separately, and the defendant excepted to such ruling. The defendant then pleaded the general issue, and specially pleaded contributory negligence on the part of the father and on the part of the child; and that as it was with the permission of the grandmother of the child, with whom the father had left her, that the child was upon the track of the company, that this trespassing proximately contributed to the injury; and, as the father was responsible, he is thereby chargeable with contributory negligence, and therefore precluded from a recovery in the present action. The plaintiff demurred to these pleas, on the ground that the permission of the grandmother was not the permission of the father, and that the father was not therefore responsible for the child being on the track; and that the conduct of the child, which contributed so proximately to the injury, cannot be set up in defense of an action brought by the father to recover for himself the injury sustained by the child, and to recover for the loss of services from the child. The court sustained all of these demurrers, severally and separately, and the defendant thereupon excepted. There were many other exceptions taken to rulings on the evidence, but it is only upon the ruling of the lower court upon these demurrers that this court expresses an opinion and bases its decisions.

Hewitt, Walker & Porter, for appellant.

Smith & Lowe, for appellee.

CLOPTON J.

Both the infant and the father may maintain separate and concurrent actions for personal injuries wrongfully done to his minor child. The principle on which the right to recover depends, and the elements of recoverable damages, are materially different in the two cases. When the infant sues for his own benefit, the application of the doctrine of contributory negligence depends on the capability of the plaintiff to exercise judgment and discretion. If the plaintiff is of such tender years that he is conclusively presumed incapable of judgment and discretion, and of owing a duty to another, neither contributory negligence on his part nor that of his parent, can be set up to defeat a recovery. Railroad. v. Hanlon, 53 Ala. 70. A child between seven and fourteen years of age is prima facie incapable of exercising judgment and discretion, but evidence may be received to show capacity. If capacity be shown, the general rule of contributory negligence is applicable, whether the action is prosecuted on behalf and for the benefit of the child, or by the father for his own benefit. Whenever the plaintiff derives his cause of action from an injury to a third person, the contributory negligence of such third person is imputable to him, so as to charge him with the consequences. The proof shows that the child was a few months over seven years of age, but there was no evidence tending...