Jefferson v. Birmingham Railway & Electric Co.

HARALSON, J. The rule in respect to contributory negligence of children has been stated by this court to be, that “a child between seven and fourteen years of age is prima facie incapable of exercising judgment and discretion, but evidence may be received to show capacity. * * * * if the plaintiff is of such tender years, that he is conclusively presumed incapable of judgment and discretion, and of owing duty to another, neither [300] contributory, negligence on bis part, -nor that of his parent, can be set up to defeat a recovery.” — Pratt C. & I. Co. v. Brawley, 83 Ala. 374; Gov. St. R. R. Co. v. Hanlon, 53 Ala. 70. See also 3 Elliott on Railroads, § 1261. In speaking of the liability for injury to trespassing children, Elliott, in his work on Railroads, says : “In actions for injuries to children, as in other cases, there can be no recovery unless the defendant has been guiltj^ of a breach of duty. * * * * There is a sharp conflict among the authorities, however, as to what the duty of a railroad company is to children who come upon its premises as trespassers or mere licensees. We believe the true rule to be that, although the age of the child may be important in determining the question of contributory negligence or the duty of the company after discovering him, the company is, in general, no more bound to keep its premises safe for children who are trespassers, or bare licensees not invited or enticed by it, than it is to keep them safe for adults.” To sustain this doctrine hq cites along list of authorities from many courts. — 3 Elliott on Railroads, § 1259. In Bishop v. Union R. R. Co., 14 R. I. 314, similar in principle to the one before up, and which, from the frequency of its citation as well as from its own inherent-merits, seems to be a leading case on the subject, the Supreme Court of tliat State lay down the doctrine, that the owner of property which has been trespassed upon, is not liable to the trespasser for an injury arising from the trespass merely because he might by care have guarded against it. Referring to the class of cases relied on by appellant in this case, to sustain his complaint, — as where defendant’s servant left his cart and horse in a public street, unattended, for half an hour, and a boy six years old, who had gotten into the cart and attempted to get out was injured, after another boy had started the horse off, (Lynch v. Nurdin, 1 Ad. & El. N. S. 29); or where a child six years old was injured while playing with a turn table of a railroad company, (Railroad Company v. Stout, 17 Wall. 657); or where defendant put a heavy gate on his own land, beside a passway which was used by children, going to and from the public road, but left it so carelessly that it fell upon and injured a child between six and seven years old, [301] who shook it in passing, (Birge v. Gardiner, 19 Conn. 507), in each of which cases a verdict was sustained against the defendant therein, — the court said': “We know of no cases more favorable to the plaintiff than the three cases last cited, but in all three of them the object which caused the injury was a dangerous object left exposed, without guard or attendant in a public place of common resort for children. An object so left is a standing temptation to the natural curiosity of a child to examine it, or to his instinctive propensity to meddle or play with it.” The court added: “The case at bar differs very much from the three cases previously stated, for in the case at bar the cars, instead of being left unattended, were in the charge of the driver who was in the act of driving them, so that there was nothing done to encourage the trespass, which was merely the result of momentary impulse. Ordinarily a man who is using his property in a public place is not obliged to employ a a special guard to protect it from intrusion of children, merely because an intruding child may be injured by it. We have all seen a boy climb up behind a chaise or other vehicle for the purpose of stealing a ride, sometimes incurring a good deal of risk. It has never been supposed that it is the duty of the owner of such a vehicle to keep an outrider on purpose to drive such boys away; and that, if he does not, he is liable to any who is injured while thus secretly stealing a ride. In such a case no duty of care is incurred.” In support of the doctrine many cases are cited, to which may de added, as being in point, Western Railway of Ala. v. Mutch, 97 Ala. 194; Cartlett v. Railway Co., 57 Ark. 461; Railway Co. v. Stumps, 69 Ill. 409; Railway Co. v. Connell, 88 Penn. St. 520; Rodgers v. Lees, 140 Penn. St. 475; Daniels v. Railway Co., 154 Mass. 349; Snyder v. Railway Co., 60 Mo. 413; Railway Co. v. Smith, 46 Mich. 504; Railway Accident Law, § 75. From what has been predicated, it will appear that counts of the complaint, numbered 1, 2, 3 and 5, were insufficient as charges of negligence against defendant, and were subject to the demurrer interposed to them. The fourth count was intended to set up that the servants of the defendant willfully or intentionally caused the injury to the child. It not only fails in this respect, but does not even aver any actionable negli [302] gence. The defendant’s servants had the right to cause the trespassing child to get off the train under proper conditions, and from aught appearing in the count, the conditions were not improper. — Haley v. K. C., M. & B. R. R. Co., 113 Ala. 640. There was no .error in sustaining the demurrer to the count. Affirmed.