Duffy ex rel. Marley v. Missouri Pacific Railway Co.

Ellison, J. From the evidence in this cause, it is clear there is no room for mistake between the parties. The plaintiff alleges and offers evidence tending to prove that he was injured while just stepping off the track directly in front of the train and in full view of those on the train, or if not in view, the defendant’s servants were not looking. The defendant says plaintiff was not on the track at all; was not in front of the train, but was climbing on some cars back of the engine, and missing his hold in some way, fell, one foot getting caught under the car wheel. From the verdict of the jury under the instructions, we are bound to conclude that they found the facts to be as plaintiff’s evidence tended to show them, that is, he was hurt by,the engine, as he was crossing the track in its front. We are further to conclude that defendant’s [388] agents did not see plaintiff, although it is conceded that the track was clear and straight without obstruction for from one-half to a mile, or if they did see him, they did not undertake to stop the train or give any alarm signal. We conclude further that the jury have found that plaintiff was not, considering his age, guilty of contributory negligence sufficient to bar his action. Defendant does not pretend that it undertook to stop the train, or that it gave any alarm, or that it tried to avoid the accident, because it says plaintiff was not on its track or in front of its train. With this statement we will examine the instructions, to see if they have laid down the law with substantial correctness. The first instruction for plaintiff has been approved in a number of cases from the supreme court of this state, and the evidence justified it being given in this case. Kelly v. Ry. Co., 75 Mo. 138, and cases therein cited by Judge Henry; Frick v. Ry. Co., 75 Mo. 608. The second instruction was justified by the evidence in this cause, and was a proper declaration as-has been repeatedly held. Pennsylvania Ry. Co. v. Lewis, 79 Pa. St. 33. And the same may be said of the fourth. The fifth as to damages is correct, and is not complained of. Aside from the refusal of defendant’s instructions, the only remaining question is as to the propriety of giving thé third instruction for plaintiff. There is no doubt that a child, though old enough to go about, will, when very young, be held incapable of contributory negligence as a matter of law. Kay v. Ry. Co. (65 Pa. St. 269), where the child was nineteen months-old ; Mascheck v. Ry. Co. (3 Mo. App. 600), where the child was three years old. And it would, doubtless, also be held, in a proper case, that though not an adult, his age may be such, in connection with the circumstances, that he would be considered as of'sufficient discretion to be adjudged capable of contributing to his own injury, as a matter of law. The difficulty in cases of infantile negligence, is in regard to that age when it cannot [389] be said that its capacity is such that it should, or should not be held responsible as an adult. In such cases, as in all others where the matter is uncertain, it is to bei “tried,” and tried by a jury, under proper direction from the court. The harsh rule announced in Hartfield v. Roper (21 Wend. 615), has not been approved in this state. It is held in O’Flaherty v. Ry. Co. (45 Mo. 70), that the same rigid rule, in determining what would be a bar to an action on the ground of contributory negligence, would not be applied to an infant. “ All that is necessary to give a right of action for an injury inflicted by the defendant, is that the injured person should have exercised care and prudence equal to his capacity.” The law in this regard is so aptly and so clearly stated by the supreme court of that state in the case of The Philadelphia & Reading Ry. Co. v. Spearer (47 Pa. St. 300), that we feel inclined to adopt the rule announced in that case. The injury happened to a child five years of age, who ran between a train and an engine closely following. The court says: “ The degree of care required of the servants of the company in such a case, is dependent to some measure upon the capacity of the injured party. If an adult should place himself upon the railroad where he had no right to be, but where the company is entitled to a clear track, and the benefit of the presumption that it will not be obstructed, and should be run down, the company would be liable only for wilful injury, or its counterpart, gross negligence. But if a child of tender years should do so, and suffer injury, the company would be liable for the want of ordinary care. The principle may be illustrated thus : If the engineer saw the adult in time to stop his train, but the train' being in full view, and nothing to indicate to him a want •of consciousness of its approach, he would not be bound to stop the train. Having the right to a clear track, he would be entitled to the presumption that the trespasser would remove from it in time to avoid the danger, or, if he thought the person did not notice the approaching train, it would be sufficient to whistle to attract his at ? tention without stopping. But, if instead of the adult, it were a little child upon the track, it would be the duty of the engineer to stop his train upon seeing it. The change of circumstances from the possession of capacity in the trespasser to avoid the danger, to a want of it, would create a corresponding change of duty in the engineer. In the former case, the adult concurring in the negligence causing the disaster, is without remedy in the latter, the child not concurring from a want of capacity, the want of ordinary care in the engineer would create liability. But if the train were upon the child before it could be seen, or if it suddenly and unexpectedly threw itself in the way of the engine, the engineer being, incapable of exercising the measure of ordinary care to. save it, the child would be without remedy, for the company’s use of its tracks is lawful, and the presence of the child upon the track is unlawful.” In that case it is probable that the court looked upon the age of the child as incapacitating it from contributory negligence, as a matter of law. The jury may well have found in this case that it was negligence in the defendant’ s servants to run a heavy freight train of twenty-. five or thirty cars at the speed of from fifteen to eighteen miles per hour, through a place of the population of Kansas City. If we are to believe the plaintiff ’ s evidence,, he would not have met with this misfortune but for this, negligence in speed. As his foot was barely caught just as he was in the act of clearing the track — just as he was. raising off of the rail — we can readily see, that if the speed of the train had been reasonable, considering it was in a populous city, he would have been beyond danger before the engine reached him. The second and third instructions refused for defendant, each leave out of view that it was defendant’s duty to avoid the injury after discovering plaintiff’s danger. The fact of the track being clear and straight for one-half mile or more would, besides enabling plaintiff to observe the train, afford defendant’s servants ample opportunity to discover his peril. [391] Defendant complains of tlie court giving any instruction submitting to the jury the capacity, age and discretion of plaintiff in connection with the question of contributory neg'igence, and contends that the undisputed testimony shows Mm to be sui juris. Though we do not agree to this, yet defendant is in no position to complain, for we find it submits the same question in its first instruction given. So if it be error, defendant has joined in its commission. It must be admitted that the evidence supporting defendant’s theory of this accident was strong, and in its essential parts came from disinterested witnesses ; yet it was for the jury to say which they would believe ; they have answered for plaintiff and it is not our province to interfere. Affirmed. All concur.