Atkinson v. Elkin

Pottle, J. The petition in an action for damages for injuries received in consequence of being struck by a railroad locomotive alleged that the person in whose behalf the suit was filed, a boy twelve years of age, endeavored, in the daytime, to cross the railroad track at a public street-crossing within the corporate limits of a municipality, and that while on the crossing he was struck by a locomotive engine and seriously injured. It alleged, that the engine was attached to a through freight-train, which was running through the town at a speed of forty miles an hour, that no whistle was blown or bell rung, and that the engineer did not check the speed of the train or have it under control as required by law; that the boy was in the exercise of all the ordinary care and caution which a child of. his years was capable of exercising; and that his injuries were due solely to the negligence of, the defendant in running the train at a high and dangerous rate of speed, in failing to give warning of its approach, and in failing to check and keep checking the train on approaching the crossing as required by the law of this State. Reid, that the petition set forth a cause of action and was not subject to general démurrer, and that the question of contributory negligence is one to be submitted to the jury, to be considered in the light of the boy’s tender years and inexperience. Judgment affirmed.