The Indianapolis, Peru and Chicago Railway Company v. Pitzer

• Decision Date: 12 January 1887
• Docket Number: 12,064
• Citation: 10 N.E. 70,109 Ind. 191
• Parties: The Indianapolis, Peru and Chicago Railway Company v. Pitzer
• Court: Indiana Supreme Court

10 N.E. 70

109 Ind. 191

The Indianapolis, Peru and Chicago Railway Company v. Pitzer

No. 12,064

Supreme Court of Indiana

January 12, 1887

Original Opinion of April 14, 1886, Reported at: 109 Ind 179.

OPINION

Elliott, C. J.

In their brief counsel for appellant say: "We desire a rehearing and modification of the opinion in three particulars:

"1st. The ruling of the court on the question asked of the juror.

"2d. The boy in this case was of sufficient age and experience to be held responsible for the acts committed by him, if he himself were the plaintiff; and as the father is plaintiff he is not in as favorable a position as the boy would have been.

"3d. There was no negligence on the part of the conductor of the passenger train, proximately causing the injury; and as the boy was a trespasser on the track, there was no unperformed duty on the part of the employees in charge of the freight train which caused the injury."

The first point is disposed of by the case of Johnson v Holliday, 79 Ind. 151, cited in our former opinion. We have no doubt that we were right in holding, as we did in that case, that the record must contain, not the single question and the one answer of the juror, but his whole examination. It may well be that other questions and answers would show that no injury was done the appellant. This must be presumed, for it is as plain a rule of law as there is in all the books, that an appellant must affirmatively show error in the rulings of the trial court, for, until the contrary is shown, all reasonable presumptions are indulged in favor of those rulings.

We are at a loss to ascertain what is sought by the appellant, for, aside from the proposition just disposed of, we decided but two others, one of these was in its favor, and the other, which was against it, was that the complaint was good. These were the only points decided, and, of course, the only conjecture we can make is, that the appellant is dissatisfied with our ruling upon the complaint, for the general abstract statements made in the counsel's brief do not enable us to very clearly comprehend just what it is that they find fault with. We were careful to say in our former opinion that we did not place our decision upon the wrongful act of the conductor in putting the child off of the train, without consigning him to the care of any one, but "that the conductor's want of care must be taken in conjunction with the wrong of the engineer and those in charge of the freight train, in negligently failing to stop the train when it was within their power to do so before it ran upon the child. These two leading facts," we said, "when combined, make a case establishing negligence on the part of the appellant."

It thus appears that our decision rested on the entire complaint and not on a part of it. As it seems that counsel misunderstand that part of the complaint which describes the manner in which the child was killed, we set it out: "Said child having been thus wrongfully and negligently put off of said train at said point as aforesaid, without being placed in the control or in the custody of any one, and without the fault or neglect of his parents, he, the said Arthur Pitzer, was casually upon the track of said defendant at a point on the line of said railroad, at or near a public highway crossed by said railroad track, about one and one-fourth miles north of said Jackson station; that at said time, which was between the hours of four and five o'clock p. m., said defendant was running a locomotive and freight train, which was coming from the south; that while said Arthur Pitzer was upon said track at or near the crossing of said public highway, and on the north side thereof, he could have been distinguished by the servants, agents, and employees of said defendant, then running said locomotive and train of cars, for a distance of three-quarters of a mile, within which distance said locomotive and cars could have been easily stopped, said track being up grade to said crossing from the point where said Arthur could have been distinguished as aforesaid, but that said defendant, its agents, servants and employees, wrongfully, negligently and carelessly, without giving any signal or warning, or in any way attempting to stop said train, and while said child might have been and was seen by the defendant's agents, servants and employees then running said train of cars, ran said locomotive and train of cars over the said Arthur Pitzer."

We think the case presented by the complaint an unusually strong one, and far within the authorities. If the employees of a railroad company see a child of seven years of age upon the track, far enough off to easily stop the train, but, instead of stopping it, negligently run upon it and crush it to death, then, upon the clearest principles of justice and right, the company is liable. In our former opinion we cited many cases sustaining that conclusion. But in this case we have the further element that the conductor put the child off at a station, unattended and uncared for, and without commending him to the care of any person.

We did not depart from our own decisions in affirming, as we did, that more care is required where a child of tender years, or a helpless man, is seen upon the track, than where one who has reached the age of discretion, and appears to be in possession of his faculties, is seen on the track.

In the case of Pittsburgh, etc., R. W. Co. v. Vining, 27 Ind. 513, a child of seven years of age was treated as too young to be guilty of negligence, and a complaint not nearly so strong as the present was held good. Lafayette, etc., R. R. Co. v. Huffman, 28 Ind. 287, does not at all conflict with our conclusion. On the contrary, it gives it strong support, for it was there said: "Thus, if an engineer of a locomotive discovered a young child on the railroad track, he would be required to use greater effort to stop the train than could have been expected from him if he had discovered a grown person in the same situation. In the latter case, he could reasonably depend more upon the judgment and presence of mind of the person on the track to save himself from danger than in the former case."

Surely the appellant can not get any support from the doctrine of the case cited. It might doubtless do so, if the complaint did not negative negligence on the part of the child's parents, but this is expressly negatived in the complaint before us. In the case of Hathaway v. Toledo, etc., R. W. Co., 46 Ind. 25, a recovery was denied because there was contributory negligence; but in this case that is expressly negatived. The complaint in Jeffersonville, etc., R. R. Co. v. Bowen, 40 Ind. 545, was not so strong as the present, and the court said that it could see no objection to it. In Binford v. Johnston, 82 Ind. 426, this court asserted that the same rules were not applicable to children as to adults, and the assertion was supported by the citation of many authorities. This principle is also recognized in City of Indianapolis v. Emmelman, 108 Ind. 530, 9 N.E. 155.

Turning now to the cases cited by the appellant from other courts, we find counsel saying: "In Scheffler v. Minneapolis, etc., R. W. Co., 32 Minn. 518, 21 N.W. 711, a child eighteen months of age was killed. Held, the child was a trespasser, and the company was not required to anticipate that it would be on the track." But a moment's reflection must produce the conviction that this doctrine can not apply to a case where the child was seen and distinguished. That we are right in our interpretation of that decision is apparent from the language employed by the court in the case referred to, for it was said: "If the engineer had seen him, and then had not exercised proper care to avoid striking him, there would have been a different case. Locke v. First Division St. Paul, etc., R. R. Co., 15 Minn. 350."

In the case of St. Louis, etc., R. W. Co. v Freeman, 36 Ark. 41, the decision, so far as it concerns the question here under discussion, is against the appellant, for it was there held that the company was not responsible, "unless the trainmen, after discovering the child, omit the use of reasonable precaution to avoid the injury." Here the company is responsible, because after having seen the child, they used no precaution at all, although the train might have been easily stopped. The decision in Prendegast v. New York, etc., R. R. Co., 58 N.Y. 652, is also against the appellant, for, to quote the language of the case, "a child of such...