The Terre Haute Street Railway Company v. Tappenbeck

• Decision Date: 15 March 1894
• Docket Number: 1,122
• Citation: 36 N.E. 915,9 Ind.App. 422
• Parties: THE TERRE HAUTE STREET RAILWAY COMPANY v. TAPPENBECK
• Court: Indiana Appellate Court

36 N.E. 915

9 Ind.App. 422

THE TERRE HAUTE STREET RAILWAY COMPANY v. TAPPENBECK

No. 1,122

Court of Appeals of Indiana

March 15, 1894

From the Vigo Circuit Court.

S. B Davis, J. C. Robinson and S. M. Reynolds, for appellant.

W. H Soale, S. R. Hamill and I. N. Pierce, for appellee.

OPINION

DAVIS C. J.

This was an action instituted by appellee to recover damages for the death of his son "one William Tappenbeck, a minor under the age of twenty-one years, to wit, of the age of nine years," which was caused, as alleged, by reason of the negligence of appellant, "without the fault or negligence of this plaintiff or the parents of him, the said William."

There is no averment in the complaint that said William was without fault or negligence on his part. Neither are facts stated therein showing that he was not guilty of any negligence at the time of the accident.

The appellee recovered judgment in the court below.

The first question discussed by counsel for appellant in this court brings in review the action of the trial court in overruling the demurrer to the complaint.

The objection urged against the complaint is that it fails to aver, as before suggested, that the injury and death of appellee's son was not contributed to by the negligence of the deceased.

The general rule in relation to the effect of contributory negligence on the parent or child in such cases is stated by Messrs. Shearman and Redfield, as follows:

"When a parent or master sues, for his own benefit, to recover damages for the technical loss of service caused to him by the injury of a child or servant, the contributory negligence of the actual plaintiff, or his agent, is, of course, a good defense, and in such an action any contributory negligence of the child or servant which would suffice to bar an action brought in his name, will also preclude a recovery by the parent or master." Section 71, Shear. & Red. on Law of Neg. (4th ed).

The general rule in this State is that in an action to recover damages on account of the death of one caused by the negligence of another it is incumbent on the plaintiff to aver and prove that the intestate was without contributory fault on his part. Pennsylvania Co. v. O'Shaughnessy, Admr., 122 Ind. 588, 23 N.E. 675; Lyons v. Terre Haute, etc., R. R. Co., 101 Ind. 419; Cincinnati, etc., R. W. Co. v. Hiltzhauer, 99 Ind. 486; Williams v. Moray, 74 Ind. 25; Louisville, etc., R. W. Co. v. Boland, 53 Ind. 398; Pennsylvania Co. v. Gallentine, 77 Ind. 322.

Does the foregoing rule apply to this class of cases?

In this connection it is necessary to consider what infants are non sui juris.

Mr. Beach says:

"Infants, also, it may be said, in general, belong to this class, but not all infants, very evidently. It is a question of capacity, and it has been found a very difficult question, and has been, in many courts, a very fruitful source of controversy, as to what age is sufficient to constitute an infant sui juris. Unless the child is exceedingly young it is usually left to the jury to determine the measure of care required of the particular child in the actual circumstances of the case. Where there is no doubt as to the capacity of the child, at one extreme or the other, to avoid danger, the court will decide it as a matter of law. Thus, courts have held, as a matter of law, children of various ages from one year and five months to seven years non sui juris." Section 117, Beach on Cont. Neg. (2d ed.); section 73, Shear. and Red. on Cont. Neg. See, also, Central Trust Co. v. Wabash, etc., R. W. Co., 31 F. 246; O'Flaherty v. Union R. W. Co., 45 Mo. 70; Mangam v. Brooklyn R. R. Co., 38 N.Y. 455; Pittsburg, etc., R. W. Co. v. Caldwell, 74 Pa. 421; North Pa. R. R. Co. v. Mahoney, 57 Pa. 187; McGarry v. Loomis, 63 N.Y. 104; Lehman v. City of Brooklyn, 29 Barb. 234; McLain v. Van Zandt, 7 J. & S. (N.Y.) 347; Gavin v. City of Chicago, 97 Ill. 66; Bay Shore R. R. Co. v. Harris, 67 Ala. 6.

In this State it is held necessary, in actions in behalf of infants of tender years to recover damages on account of injuries sustained by them through the negligence of another, to aver that there was no negligence contributing thereto on the part of the infant who prosecutes such suit. Higgins v. Jeffersonville, etc., R. R. Co., 52 Ind. 110; Hathaway v. Toledo, etc., R. W. Co., 46 Ind. 25.

These decisions are based on the proposition that when a child is so young as not to be sui juris the negligence of his custodians 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. See section 74, Shear. and Red., supra; sections 116, 118, 119, and 122, Beach, supra.

It is now settled by the overwhelming weight of authority, that a child is held, so far as he is personally concerned, only to the exercise of such degree of care and discretion as is reasonably to be expected from children of his age. Section 73, Shear. and Red., supra; Indianapolis, etc., R. W. Co. v. Pitzer, 109 Ind. 179, 6 N.E. 310.

In the following cases in our own State, which were actions prosecuted by fathers for damages on account of the death of their children ranging in ages from two years to seven years and two months, caused by the negligence of others, it was held that it was not necessary to aver that the child was free from fault. Jeffersonville, etc., R. R. Co. v. Bowen, 49 Ind. 154; Evansville, etc., R. R. Co. v. Wolf, 59 Ind. 89; Pittsburgh, etc., R. W. Co. v. Vining's Admr., 27 Ind. 513; Indianapolis, etc., R. W. Co. v. Pitzer, supra.

Whether the rule referred to imputing the negligence of the parent to the child in actions prosecuted for and in behalf of the child is a just or unjust rule, and whether it is supported or condemned by the weight of authority, we are not required in this action to determine.

The question which confronts us is, whether an action by a father for damages sustained by him on account of the death of a son of the age of nine years, caused by the negligence of another, the general averment that the parents were free from contributory fault includes the averment that the child was also free from fault contributing thereto.

A great many cases support the proposition that a boy nine years of age, when it does not appear that he was in any respect deficient or incompetent, is sui juris, and is bound to exercise that degree of care which can reasonably be expected of one of his age; that it is error in such case to hold...