Warren v. Manchester St. Ry.

• Decision Date: 27 July 1900
• Citation: 70 N.H. 352,47 A. 735
• Parties: WARREN v. MANCHESTER ST. RY.
• Court: New Hampshire Supreme Court

47 A. 735

70 N.H. 352

WARREN

v. MANCHESTER ST. RY.

Supreme Court of New Hampshire. Hillsboro.

July 27, 1900.

Exceptions from Hillsboro county.

Action by George H. Warren, administrator, against the Manchester Street Railway. There was a judgment for plaintiff, and defendants bring exceptions. Overruled.

Case for negligence. Verdict for the plaintiff. The defendants, while running an electric car in a public street in Manchester, struck and killed the intestate, an infant 3 years old, who had left his home unobserved 10 minutes before the accident. His mother was ill in bed, and his father was away at work. The plaintiff's evidence tended to prove the following facts: When the car was about 50 feet from the place of the accident, the child was within 4 or 5 feet of the track, walking slowly towards it. Apparently, the motorman did not notice him. The car was running 12 to 15 miles an hour, and the motorman did not put on the brake in season to avoid the injury. The accident occurred on the afternoon of a summer day, and there was no obstruction to prevent him from discovering the child sooner than be did. The car had no fender attached to it, if there had been one, the danger of injury would have been much less. The defendants' evidence tended to prove that the child started suddenly from the side of the street to cross the track, when the car was nearly opposite to him. and that the motorman, on account of excitement, failed to reverse the power. Subject to the defendants' exception, the intestate's father was not allowed to testify upon cross-examination whether or not he permitted the intestate to go out unattended. The defendants excepted to the refusal of the court to instruct the jury as follows: "(1) If you find that the child strayed into the street by reason of the negligence of its parents, and this contributed to the injury, the plaintiff cannot recover. (2) If you find that the motorman was acting under excitement at the time of the accident, and by reason thereof erred in what he did,—that is, used the brake when he ought to have used the reverse,—it was not negligence. (3) If you find that the motorman, up to the time of the accident, was in the exercise of due care, and that when he saw the danger which the child was in he acted under the influence of sudden excitement, and on that account erred in judgment by using the brake instead of the reverse lever, his conduct in so doing was not negligence. (4) If you find that such a fender as the defendants could have conveniently used upon the car at the time of the accident probably would not have saved the life of the child, the absence of it was not negligence, and cannot be considered in determining the question of the defendants' liability." The court instructed the jury in part as follows: "It was the duty of the defendants to use due care to select competent servants to manage their cars, and, if they failed to exercise such care, they were negligent. * * * It was the duty of the defendants to equip their cars with such safety appliances as men of average prudence would use under the same circumstances. They were not bound to adopt all such devices as are put on the market; but, if they failed to use such safety appliances as reasonably prudent men would use in the same circumstances, they were negligent." Subject to the defendants' exception, the court refused to qualify these instructions by adding, "if the failure to make the proper selection of servants or furnish the proper appliances contributed to the accident or injury," for the reason that the qualification asked for was contained in another part of the charge.

Burnham, Brown & Warren, for plaintiff.

Oliver E. Branch, Elijah M. Topliff, and Joseph W. Fellows, for defendants.

PIKE, J. The defendants' exceptions to the court's refusals to permit the father to testify whether he allowed his child to go out unattended, and to instruct the jury that, if the child strayed into the street in consequence of the parent's negligence, and this negligence contributed to cause the injury, the plaintiff could not recover, raise the questions (1) whether a parent's negligence is imputable to his child, and (2) whether the father of the intestate is the real plaintiff in this action. Had the negligence relied upon been that of the motorman solely, it would be unnecessary to consider these questions; for, in that event, the father's negligence must have been only a remote cause of the injury, and therefore would be immaterial to the plaintiff's right to recover. The effect of this negligence would have been only to allow the child to be in a dangerous situation. The father's absence would have rendered it impossible for him to avoid the injury at the time. "He who cannot prevent an injury negligently inflicted upon his person or property by an intelligent agent, 'present and acting at the time,' * * * is legally without fault; and it is immaterial whether his inability results from his absence, previous negligence, or other cause." Nashua Iron & Steel Co. v. Worcester & N. R. Co., 62 N. H. 159, 163; Felch v. Railroad Co., 66 N. H. 318, 29 Atl. 557; Brember v. Jones, 67 N. H. 374, 376, 377, 30 Atl. 411, 26 L. R. A. 408; Brown v. Bank, 67 N. H. 549, 551, 39 Atl. 336; Chickering v. Lord, 67 N. H. 555, 557, 32 Atl. 773; Edgerly v. Railroad Co., 67 N. H. 312, 314-317, 36 Atl. 558. The question for the jury would have been whether or not the defendants, by the exercise of ordinary care, could have prevented the injury. If they could not, they would have been without fault, and not liable; if they could, they would have been "liable whether the intestate was in the street by reason of or without his parents' negligence. In cases of this character, where an irresponsible child is * * * by the negligence of the parent * * * exposed to peril without an attendant, * * * the question of contributory negligence is not involved." Bisaillon v. Blood, 64 N. H. 565, 566, 15 Atl. 147. There was, however, other evidence of the defendants' negligence in their failure to provide a fender for the car. If they had provided one, the intestate might not have been injured. This negligence was due to nonaction of the defendants at some previ ous time. It was negligence that occurred in the past, the effect of which the defendants could not avoid at the moment of the accident by the exercise of ordinary care. If, therefore, the father's negligence is imputable to the child, or the father is the real plaintiff, his negligence in allowing the child to stray upon the track was material if it contributed to the injury. Nashua Iron & Steel Co. v. Worcester & N. R. Co., 62 N. H. 159, 165.

The question whether a parent's negligence can be imputed to his child, so as to bar a recovery by the child against a third person, has been considered by the courts of many states, and conflicting conclusions have been reached. The question first arose in Hartfield v. Roper, 21 Wend. 615, where it was decided in the affirmative. The court said: "An infant is not sui juris. He belongs to another, to whom discretion in the care of his person is exclusively confided. That person is keeper and agent for this purpose, and, in respect to third persons, his act must be deemed that of the infant; his neglect, the infant's neglect." This rule has been approved several times in the state where it originated, and has been accepted by the courts of other states; but it was questioned in Vermont soon after its announcement, and has been rejected by the courts in many states. In Robinson v. Cone, 22 Vt. 213, 224, Redfield, J., said: "And we are satisfied that, although a child, or idiot, or lunatic may, to some extent, have escaped into the highway through the fault or negligence of his keeper, and so be improperly there, yet, if he is hurt by the negligence of the defendant, he is not precluded from his redress." In Smith v. O'Connor, 48 Pa. St. 218, 221, the court said: "We are asked to approve and apply the doctrine held by the New York courts, and first enunciated in Hartfield v. Roper, 21 Wend. 615. There it is ruled that the negligence or imprudence of the parents or guardians in allowing a child of tender age to be exposed to injury in a highway furnishes the same answer to an action by the child as the negligence or other fault of an adult plaintiff would in a similar case. The negligence of the parents or guardians is imputed to the child, and hence, unless the infant plaintiff has exercised that care and prudence which is demanded of an adult, unless equally guiltless of any negligence concurring with a wrongful act of a defendant in causing an injury, no action can be sustained. This is compelling the child to the exercise, not of its own, but of its parents', discretion. It is holding it responsible for the ordinary care of adults. In our opinion, the rule thus broadly stated does not rest upon sound reason." In Railroad Co. v. Snyder, 18 Ohio St. 399, 409, it was said: "It is the old doctrine of the father eating grapes and the child's teeth being set on edge. The strong objection to it is its palpable injustice to the infant. Can it be true, and is such the law, that, if only one party offends against an infant, he has his action, but that, if two offend against him, their faults neutralize each other, and he is without remedy?" In Newman v. Railroad Co., 52 N. J. Law, 446, 449, 450, 19 Atl. 1102, 8 L. R. A. 842, Beasley, C. J., said: "This doctrine of the imputability of the misfeasance of the keeper of a child to the child itself is deemed to be a pure interpolation into the law, for until the case under criticism it was absolutely unknown; nor is it sustained by legal analogies. Infants have always been the particular objects of the favor and protection of the law. In the language of an ancient authority this doctrine is thus expressed: 'The common principle is that an infant in all things which sound in his benefit shall have favor...