The Louisville, New Albany and Chicago Railway Company v. Sears

• Court: Indiana Appellate Court
• Writing for the Court: DAVIS, J.
• Citation: The Louisville, New Albany and Chicago Railway Company v. Sears, 38 N.E. 837, 11 Ind.App. 654 (Ind. App. 1894)
• Decision Date: 14 November 1894
• Docket Number: 1,248
• Parties: THE LOUISVILLE, NEW ALBANY AND CHICAGO RAILWAY COMPANY v. SEARS

38 N.E. 837

11 Ind.App. 654

THE LOUISVILLE, NEW ALBANY AND CHICAGO RAILWAY COMPANY v. SEARS

No. 1,248

Court of Appeals of Indiana

November 14, 1894

Petition for a rehearing overruled Feb. 7, 1895.

From the Carroll Circuit Court.

Judgment affirmed.

G. W Kretzinger, E. C. Field, J. F. McHugh, R. C. Pollard and C R. Pollard, for appellant.

H. H. Vinton, D. P. Vinton, J. H. Gould, G. R. Eldridge and J. M. LaRue, for appellee.

OPINION

DAVIS, J.

A judgment on a special verdict returned by the jury was rendered for $ 3,500 against the appellant.

This appeal is prosecuted for an alleged error of the trial court in overruling appellant's motion for judgment in its favor on the special verdict. Cross-errors have been assigned by appellee, bringing in review the action of the trial court in overruling appellee's motion for a venire de novo, and also for a new trial.

The verdict is set out in full as follows:

"We, the jury, find the following special verdict in the above entitled cause:

"We find that the defendant, the Louisville, New Albany and Chicago Railway Company, is, and prior to the 12th day of April, 1891, and at that time was, a corporation duly organized under the laws of the State of Indiana, and, as such was, operating a line of railroad from Louisville, in the State of Kentucky, to Chicago, in the State of Illinois; that said line of road is located and runs through the corporate limits of the city of Lafayette, in Tippecanoe county, in the State of Indiana, and along on Fifth street, in said city, occupying a track located about the center of said street, the ties of which are eight feet long; the distance between the rails on the inside was four feet, eight inches and a half; that the box and platform cars used at that time on freight trains on said railroad were from eight feet four inches to eight feet eight inches wide; that said street was sixty feet wide from the property line on one side to the property line on the other, and was forty feet wide between the sidewalks; that said street and sidewalks were in constant use by the inhabitants of said city and the public generally; that said Fifth street was an improved street and in good condition in all parts of it, except the dirt piles and holes hereinafter mentioned, on the 12th day of April, 1891, and was at that time in a populous and thickly-settled portion of the city of Lafayette; and in the corporate limits thereof; that on the 12th day of April, 1891, and for years prior thereto, and ever since, there has been in force in said city of Lafayette a valid ordinance of said city limiting the rate of speed of all railroad trains to six miles per hour; that some five days prior to the 12th day of April, 1891, said defendant company, for the purpose of removing old ties from its roadbed in said Fifth street, and replacing them with new ones at a point on said road about 150 feet north of Romig street in said city, and extending north about thirty feet, put some of the dirt on the east side and outside of the track of said company's road in a continuous pile about thirty feet long, the base of which, next to the track, was about one foot outside of the ends of the ties and outside of that part of the street used by the railroad, and in the part of the street used by the public, which pile extended north and south along said track, and was twenty inches high, and holes were left where said dirt had been taken out at the sides and ends of the ties and so remained for five days and until after the plaintiff was injured as hereinafter shown; that the new ties were put in and the dirt left in said piles prior to the 12th day of April, 1891, as aforesaid, and that said dirt might have reasonably been put back and the holes filled, and any obstruction to the street thereby removed from time to time as the new ties were put in; that George Sears, the plaintiff in this suit, was born on the 22d day of April, 1883, and at the time of the injury to him, hereinafter set forth, was seven years, ten months and twenty days old, and resided with his parents at the southeast corner of Romig and Fifth streets, in said city of Lafayette; that he was a boy of ordinary intelligence for his age, and prior to the time of said injury had been accustomed to go on the streets of the city of Lafayette unattended, going to and from school, going on errands and playing upon the streets, particularly Romig and Fifth streets near his father's residence; that on Sunday, April 12, 1891, at about 7:30 A. M., said George Sears, with three other boys near his age, was playing at a game called by them stink-base,' two of the boys having their base on the north side and two on the south side of Romig street, which street crosses Fifth street, running east and west, and said Fifth street runs north and south through said city; that on said 12th day of April, 1891, at about 7:30 o'clock in the forenoon, a freight train on said defendant's said road, owned and operated by the defendant, running from three or four squares south of Romig street in said city of Lafayette to said Romig street, crossed the same on said Fifth street, and ran along said Fifth street, going north in the corporate limits of said city, and past said pile of dirt situated on Fifth street as above found, said train then running at a rate of speed exceeding six miles per hour, to wit, at the rate of eight miles per hour; that the train consisted of a locomotive and twenty-five box cars; that while said train was passing Romig street, and after two or three cars had passed, the plaintiff started to run, and did run north on said Fifth street, and in the same direction in which the cars were running, and one of the other boys ran after him for a short distance and stopped; that said plaintiff continued running, believing that one of the boys was running after him, and while so running, stepped on said pile of dirt at a place where it was twenty inches high, and the dirt gave way, causing said plaintiff to slip and fall, and slide down said pile of dirt toward and under said moving train, which was then running opposite the place where said boy fell, and some of the cars, including the caboose at the south end thereof, ran over said plaintiff, and both his legs were so mangled and crushed by said train that it was necessary to amputate both legs at four inches below the knees, which was on said day accordingly done, the operation being performed by Dr. George F. Beasley, the defendant company's surgeon, assisted by Dr. Potel, both reputable and competent physicians and surgeons; that by reason of said injury and wounds, the plaintiff has suffered great bodily and mental pain, and continues to suffer pain, and is maimed and crippled for life; that said plaintiff, at the time of his injury, was of sufficient age and capacity to exercise reasonable care in his own behalf, and that his parents were not without fault in permitting him to go abroad on the streets of said city unattended; that while said pile of dirt upon which plaintiff so stepped, and which gave way with him as stated, was apparent, and was an obstruction on said street, and in fact dangerous by reason of its liability to cause persons to stumble over the same, or of giving way, and thereby throwing persons down, still such danger was not so apparent as that it would be reasonably foreseen by a boy of the age, experience, and capacity of the plaintiff under the circumstances in which he was placed at the time he so stepped on said pile, and said danger was not in fact then and there apparent to plaintiff, and the plaintiff, in so running along said street, and stepping on said pile of dirt, which so gave way with him, and caused him to fall and slide under said moving train, was in the exercise of ordinary care considering his age, intelligence and the other facts herein found.

"We further find that the length of time said defendant allowed said street to remain obstructed by said pile of dirt, and said holes as herein found, was an unreasonable length of time.

"If upon the foregoing facts the court is of the opinion that the law is with the plaintiff, then we find for the plaintiff, and assess his damages at $ 3,500.

"If, however, the court is of the opinion that the law is with the defendant, then we find for the defendant."

It is earnestly contended by counsel for appellant that the verdict of the jury is not sufficient to sustain the judgment in behalf of appellee, because there is no finding of facts therein showing that his injuries were sustained without any fault on the part of his parents contributing thereto. It is necessary to consider, in this connection, the question whether the appellee, under the facts and circumstances disclosed by the verdict, was sui juris or non sui juris. In other words, whether the doctrine of imputed negligence has any application in this case.

If the appellee was non sui juris, the negligence of his custodian is to be imputed to the child, and, therefore, the general averment in such cases that the injured child was without fault is sufficient to negative the imputed negligence of the parent or custodian. Terre Haute Street R. W. Co. v. Tappenbeck, 9 Ind.App. 422, 36 N.E. 915.

It is necessary, however, in such cases--when the child lacks capacity to exercise care for himself--to establish on the trial that the parent was without fault.

If therefore, it was essential to a recovery in behalf of appellee that the verdict should contain a finding of facts showing that his parents were in the exercise of due and ordinary care on this occasion, it might be a serious question whether the verdict could stand, because the particular facts in relation to the acts or knowledge of the parents concerning the...