Byron v. Central Railroad

Opinion by Mr. Justice Elkin, The injured boy was twelve years of age. The accident occurred at a grade crossing after dark. There were no lights at the crossing or station nearby. The train was not running on a regular schedule. It was a special, made up for a temporary purpose. The engine was running with the tender in front, and therefore the approach of the train could not be seen by [86] the customary headlight. There is some evidence that the usual signals were not given as the train approached the crossing. These are the negligent acts on which appellees rely to recover in this action. They are clearly sufficient to take the case to the jury on the question of defendant’s negligence. The boy being under fourteen years of age, the presumption of incapacity to appreciate the danger arose and was not so conclusively overcome by the testimony offered at the trial as to justify a court in holding as a question of law that he was guilty of contributory negligence. We see no reason, either in fact or law, to distinguish the case at bar from the long line of cases in which this rule has been recognized and followed in our state. This was also a question of fact for the jury. The learned trial judge in a careful, adequate and well considered charge, submitted the case to the jury where it belonged. Assignments of error overruled and judgment affirmed.