St. Clair St. Ry. Co. v. Eadie

Citation1 N.E. 519,43 Ohio St. 91
PartiesST. CLAIR ST. RY. CO. v. EADIE.
Decision Date31 March 1885
CourtUnited States State Supreme Court of Ohio
OPINION TEXT STARTS HERE

Error to district court, Cuyahoga county.

The record presents several alleged errors, but, in affirming the judgment, the court reserves for report but a single question. Upon this question the facts necessary to be stated are as follows: This action was originally brought in the common pleas court of Cuyahoga county by Ellen Eadie, by her next friend, who was also her father, James Eadie, against the St. Clair Street Railway Company, which is and was a corporation operating a street railroad in St. Clair street and other connecting streets in the city of Cleveland. In her petition, among other things, she alleges that she was, at the time of the bringing her action and receiving the injuries complained of, a minor 16 years of age; that in the evening of the fourth day of June, 1881, accompanied by her father and mother, she was proceeding homeward in her father's wagon, drawn by one horse driven by her father, James Eadie, eastwardly along said St. Clair street, and in her journey was approaching Wilson avenue; that her father was driving along the southerly track of said street railway; that at some distance ahead of them was a passenger car of said defendant, also proceeding eastwardly along the same track; that said car was driven onto a turn-table just westwardly of Wilson avenue, and there turned around and started on its westward trip; that it proceeded to the frog or junction, situate 78 feet from said turn-table, and there, instead of taking the northerly track, as was usual, the driver of the car directed it into the southerly track on the left-hand side of the road, and that the plaintiff was then at least 127 feet away; that her father saw it and immediately began to turn off the track, and made loud outcries; that the car was being driven at a rapid rate of speed, and the same was driven violently against the wagon of said plaintiff's father, upsetting it and greatly injuring the plaintiff, Ellen Eadie; that the injuries occasioned her were without her or her father's fault or negligence.

The defendant below denied all allegations of negligence on its part, and alleged negligence on the part of said plaintiff and her father. The trial resulted in a verdict and judgment for defendant in error.

On a motion for a new trial the following, among other errors of law, were assigned as grounds for a new trial: (8) That the court erred in the trial of this cause in charging the jury ‘that if there was negligence on the part of said plaintiff's father, still she is not to be held responsible for it;’ and ‘that the conduct of her father, who was driving that wagon, any negligence on his part, with which she had nothing to do, would not be attributed to her in that respect. Even though the father, by his negligence, may have so contributed to that accident that he would be barred of a recovery by his contributory negligence, it still will not prevent this plaintiff of a recovery unless she herself participated in the negligence which caused the injury.’ (9) That the court erred on the trial of this cause in refusing to charge the jury that, ‘if the jury are convinced, from all the testimony in the case, that plaintiff's said father, James Eadie, after he discovered that said car was coming down the south track on said road, had sufficient time, by the use of ordinary care, to get off from said track, and out of the way of said car, it was his duty to do so, and the plaintiff cannot recover in this action.’

It is assumed from the pleading and charge of the court that evidence was offered, tending to show that the defendant below was guilty of negligence directly contributing to the plaintiff's injury, and that the plaintiff's father was also guilty of contributory negligence. No claim was made that the company was negligent in employing the driver, nor that he was not competent, nor that the father was not also competent to drive his own wagon. The ground alleged for recovery was that the car driver was driving too rapidly, did not keep a sufficient lookout, and did not stop the car as he might have done, and so avoid the accident.

For the purpose of this case we will assume that the verdict establishes the fact that the negligence of the driver caused the collision with the wagon in which she was riding, turning it over and injuring the plaintiff, and that her father, who was driving the wagon, was also negligent in being upon the railroad track, and was not exercising proper diligence and care to avoid the collision, thereby directly contributing to the injury. The plaintiff herself was not guilty of any negligence in the premises, so that the sole question is, was her father's negligence to be imputed or attributed to her?J. P. [Ohio St. 93]Dawley, for plaintiff in error.

[Ohio St. 94]Griswold & Starr, for defendant in error.

JOHNSON, J.

The plaintiff, though a minor, was 16 years old, and was therefore sui juris. She was fully capable of taking care of herself. Had her negligence or misconduct contributed to her injury she could not recover, though the company was also guilty. The question fairly presented, therefore, is whether a minor child, who, being sui juris as to a reasonable care of her person and safety, lawfully and properly enters into a conveyance with her parent, and, without fault on her part, is injured by the negligence of a street railroad company, is prevented from recovering against such negligent company, because her parent has, by his negligence, contributed to the injury. In Transfer Co. v. Kelly, 36 Ohio St. 86, this court held that the concurrent negligence of a street car company, [Ohio St. 95]whose passenger the plaintiff was, with that of a transfer company, whereby there was a collision between the wagon of the latter with the car of the former, cannot be imputed to the passenger, so as to charge him with contributory negligence. In that case, as in this, the plaintiff was not in fault; but there, as here, it was contended that the plaintiff was so identified with, or related to, the railroad company by the contract of carriage that the fault of the carrier must be imputed to the passenger. Neither in that case nor in this was there any fault alleged against plaintiff for becoming a passenger. The two cases differ in two respects only: There the carriage was by a public carrier, presumably for hire or reward, while here it was by private conveyance, and presumably gratuitous. There the driver of a street car was a stranger to the passenger, while here he was her father, with whom she...

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