Westbrook v. The Mobile & Ohio Railroad Co

Decision Date13 May 1889
Citation6 So. 321,66 Miss. 560
PartiesJACOB WESTBROOK, BY NEXT FRIEND, v. THE MOBILE & OHIO RAILROAD CO
CourtMississippi Supreme Court

April 1889

FROM the circuit court of Clay county, HON. LOCK E. HOUSTON Judge.

This is an appeal from a judgment sustaining a demurrer to the declaration of appellant, who was plaintiff in the court below. The action was for damages against the railroad company for personal injuries to the plaintiff. Several pleas were filed, to which a demurrer was interposed. The demurrer was extended to the declaration, and sustained, and the case dismissed.

The plaintiff, a child four or five years old, was struck and injured by a train while crossing the track of defendant. This was at the crossing of a well-known roadway, but not a public road. As to the point involved in the demurrer, the declaration alleges, "that the engineer of said train saw plaintiff when four or five hundred feet from him, and could have stopped the said train, after seeing said minor in the act of crossing said road, before said train reached him if said engineer had been diligent in the discharge of his duty. But he did not stop said train, nor did he slacken or attempt to slacken the speed thereof before striking the said minor as aforesaid, and after knocking off the track said plaintiff and injuring him as aforesaid, said servants did not stop said train to look after the comfort of said plaintiff," and, that the engineer, seeing the child on the track," without blowing the whistle, ringing the bell, or giving any signal of warning whatever, negligently wantonly, and recklessly ran said train and locomotive upon and against said minor;" that plaintiff "never saw nor heard said train, and never knew it was anywhere near him or in reach of him." The declaration also alleged that the plaintiff resided with his father about one hundred and eighty feet from the railroad track; that plaintiff and an older brother about eight years of age were driving some cattle across the track to the range for their father, as they were accustomed to do; that the elder brother had passed over, driving some of the cattle, and plaintiff was behind driving the other cattle, and had gotten on the track at the crossing, when the north bound passenger train was then four or five hundred feet to the south, running rapidly, and that it came upon the plaintiff, causing the injury. The declaration further alleges "that if the engineer had given plaintiff any warning by the bell or the whistle he would not have been injured. "

With the general issue, the defendant filed the following special pleas:

2. "And for a further plea the defendant says actio non because it says that the injuries complained of by the plaintiff were the direct result of his own contributory negligence, and not of the negligence of the defendant, etc."

3. "And for a further plea the defendant says actio non, because it says that the injuries complained of were the direct result of the negligence of the parents and the next friend of plaintiff and said elder brother, who then and there had the care, custody, and control of him, in allowing and directing him, at the tender age set out in said declaration, to go upon said railroad track at the time when said train usually passed that point."

The demurrer of plaintiff to these pleas being extended back to the declaration and sustained, leave was given to amend the declaration, which leave the plaintiff declined, and judgment was entered dismissing the case, from which this appeal was prosecuted.

Judgment reversed and remanded.

Frank A. Critz, for appellant.

1. The demurrer being extended back, is to be considered a general demurrer to the declaration. In such case it will not be sustained, unless the declaration is so defective that judgment cannot be given for plaintiff upon it. 45 Miss. 347; 51 Ib. 501; 56 Ib. 346.

2. The fact that the engineer saw the child on the track in time to have prevented the accident, makes the defendant liable in any view of the case. In the Jamison case this court said: "However negligently the children may have acted in getting on the track, the defendant was liable if its servants, knowing their position, failed to exercise due care in preventing the accident." Jamison v. R. R. Co., 63 Miss. 33. See also Pratt Co. v. Brawley, 83 Ala. 374; 14 Am. & Eng. Ry. Cas. 65. Opposite counsel concede this, and say the principle applies alike to children and adults. This is a concession of the whole case.

In case of an adult on the track, the engineer may assume that he will use his senses and get out of the way; but not so with a little child. In this case if one of the cows the child was driving had been killed, without warning or effort to stop the train, the company would have been liable. On this point see Mackey v. Vicksburg, 64 Miss. 783.

Here the child was not a trespasser; being on the crossing, the obligation of the defendant was to give warning. It may be that a signal or warning would have been unheeded by the child, but this is conjecture; if after the exercise of due care the injury had occurred, then only would the defendant have been absolved. R. R. Co. v. Layer, 112 Pa. 418; Barry v. R. R. Co., 92 N.Y. 289; 41 Ib. 52; 81 Pa. 375.

Equally with a traveler, it is the duty of those in charge of trains to keep a sharp look-out at crossings. Princeton v. Ry. Co. (Me.), 7 Atlantic Rep. 707; Ry. Co. v. Owings (Md.), 5 Ib. 329.

The law does not require the same degree of care in a child of tender years as in case of an adult. 84 Ill. 485; 67 N.Y. 421; 38 Ib. 448; 4 Am. & Eng. Ry. Cas. 611; S. C. 36 Ark. 41; Frazier v. R. R. Co., 81 Ala. 185; Sherman & Redlf. on Neg., § 51.

3. A child four or five years old cannot be guilty of contributory negligence. 4 Am. & Eng. Ry. Cas., p. 559, note; 84 Ill. 485; 58 Ib. 226; 54 Ib. 484; 53 Ala. 70; 67 Ib. 6; 83 Ib. 374; 112 Pa. 418.

Unusual precocity must be pleaded if defendant relies on this to charge a child of tender years with contributory negligence. Prima facie such child is incapable. Pratt Co. v. Brawley, 83 Ala. 374; Mackey v. Vicksburg, 64 Miss. 783. For these reasons the demurrer to the second plea should have been sustained.

4. The third plea seeks to impute contributory negligence of parents to the child. It presents no defense, and the demurrer to it should have been sustained. If the action is brought for the benefit of the parent, his contributory negligence will defeat a recovery. But if the action is for the benefit of the child, the contributory negligence of the parent is no defense. The failure to observe this distinction has occasioned confusion in some of the authorities. Sher. & R. on Neg., §§ 70, 78; 113 Pa. 412; 53 Ala. 70; 67 Ib. 6; 83 Ib. 371; 18 Ohio St. 309; 24 Ib. 670; 16 Neb. 139; 1 Head. (Tenn.) 623; 27 Grat. 476; 26 Conn. 591; 60 Texas 206; 22 Vt. 213; Beach on Con. Neg., §§ 42, 45.

5. In any view of the case, the demurrer should not be extended to the declaration. Even if the second and third pleas are good, the question of contributory negligence is one of fact to be submitted to the jury. Hickman v. Ry. Co., ante, 154; 18 Ill. 349; 48 Ib. 221; 58 Ib. 226; 65 Pa. 269; 75 Ib. 257; 45 Mo. 70; 41 Iowa 71; 40 Cal. 188, 447; Beach on Con. Neg., § 458, and authorities cited; 26 N.Y. 49; 104 Mass. 53; 100 Ib. 512; 22 Vt. 213; 72 Pa. 169.

6. Admitting the second and third pleas to be good on their face, as a matter of fact it was not negligence per se to permit the child to drive the cattle, in company with his brother, eight years old, as shown in the declaration. 45 Mo. 70; 36 Ib. 484; 47 N.Y. 317; 100 Mass. 512; 27 Mich. 503; 84 Ill. 483; McMahon v. R. R. Co., 39 Md. 438.

7. It was gross negligence for the defendant to leave the child uncured for and without attention after being so seriously injured. Schinier v. R. R. Co., 14 Am. & Eng. Ry. Cas. 656.

With all deference for the learned judge below, we think he misconceived the questions of law and fact involved in the case.

F. A. Critz made an oral argument.

Barry & Beckett and E. L. Russell, for appellee.

1. The demurrer was properly sustained to the declaration. The words "negligently, wantonly, and recklessly" in the declaration are strong sounding, yet they are the ordinary terms for a simple negligent act, and do not import a willful or intentional act. Ry. Co. v. Ader, 110 Ind. 376. It is clear, however, that the allegations make a case of negligence against the defendant, but we think it equally clear that they make it a case of contributory negligence, both on the part of the parents and older brother, and the plaintiff.

It is alleged that the child went on the track at the crossing, and that the train was only four or five hundred feet away, running, and that he did not see it nor hear it, but that the engineer saw him. This is equivalent to the assertion that he could have seen and heard it if he had looked and listened, and it was his duty to do both. R. R. Co. v. Mitchell, 52 Miss. 808; R. R Co. v. McGowan, 62 Ib. 694. The authorities on this point are collected in the note to Schilling v. Ry. Co., 37 N.W. 416. See also Schofield Ry. Co., 114 U.S. 615. Such a declaration as this is demurrable, though it be alleged that there was no contributory negligence. Goldstein v. Ry. Co. (Wis.), 1 N.W. 37 ; Delany v. Ry. Co., 33 Wis. 67; Haas v. Ry. Co., 41 Ib. 54.

The parents and custodians of the plaintiff were guilty of contributory negligence. It was inexcusable negligence to send these young children habitually across a railway track. If the older brother had arrived at the years of discretion then he was guilty of great negligence in not warning his brother of the approach of the train. It is not alleged that this older brother did not see the...

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