St. Louis, I. M. & S. Ry. Co. v. Sparks

• Decision Date: 31 December 1906
• Citation: 99 S.W. 73
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. SPARKS.
• Court: Arkansas Supreme Court

99 S.W. 73

ST. LOUIS, I. M. & S. RY. CO. v. SPARKS.

Supreme Court of Arkansas.

December 31, 1906.

Appeal from Circuit Court, Hempstead County; Joel D. Conway, Judge.

Action by Willie Sparks against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

B. S. Johnson, for appellant. O. A. Graves, O. D. Scott, and W. H. Arnold, for appellee.

RIDDICK, J.

This is an action brought by Willie Sparks, a minor, by his next friend to recover damages for an injury caused by one of the cars of the defendant railway company. At the time of the accident Willie Sparks, a boy between 9 and 10 years of age, was returning from the place where he attended school to his home. He and a number of other school children walked along the side of the railway track and then attempted to cross the track. The employés of the company had left a caboose with three freight cars attached standing on the track near where the boy attempted to cross. Just before the boy attempted to cross the track another car was pushed or kicked against these cars and caboose which were standing on the track and caused them to back down the track. While thus moving the caboose struck the plaintiff. Willie Sparks, and the result was that his foot was crushed to such an extent that it was necessary to amputate it. The jury returned a verdict in favor of plaintiff, and assessed his damages at $10,000. Judgment was rendered against the company for that amount, and it appealed.

It is said that the plaintiff, Willie Sparks, was guilty of contributory negligence, but that question was submitted to the jury under proper instructions, and, considering that plaintiff was, at the time of the accident, under 10 years of age, we think that the circumstances are sufficient to support the finding of the jury. It has been frequently held that a child is not required to exercise the same capacity for self-preservation and the same prudence that an adult should exercise under like circumstances. You can reasonably expect of a boy between 9 and 10 years of age only that degree of care and prudence that a boy of that age or of his degree of intelligence should exercise. What would be ordinary care for such a boy might be culpable negligence in an adult. Dowling v. Allen, 88 Mo. 293; Ridenhour v. Kansas City Ry. Co. 102 Mo. 283, 13 S. W. 889, 14 S. W. 760; Washington R. Co. v. Gladmon, 15 Wall. (U. S.) 401, 21 L. Ed. 114; Lynch v. Smith, 104 Mass. 52, 6 Am. Rep. 188; Am. & Eng. Enc. Law (2d Ed.) 405.

The evidence tends to show that the defendant company was guilty of negligence in allowing these cars to be pushed or kicked along its track through a populous town without any lookout on them to guard against accidents to persons and property, and we think the question as to whether the plaintiff of contributory negligence in failing to look up and down the track as he walked upon it was a question for the jury.

An instruction of the court told the jury that contributory negligence was an affirmative defense, and that the burden of proof was on ...