Indianapolis, Peru & Chicago Railway Co. v. Pitzer

Elliott, C. J. The material allegations of the appellee’s •complaint are these : That the son of the appellee, aged seven years and two months, without the fault or negligence of his parents, wandered to the depot of the appellant, in the city of Kokomo, and was carelessly and negligently permitted to — 181 — get on one of its passenger trains which stopped for five minutes at that depot; that the child was carried to Jackson station ; that the conductor of the appellant’s train “ wrongfully, carelessly and negligently put the child, Arthur Pitzer, off at that station, without leaving him in charge of any person, or giving any one instructions concerning him; ” that the conductor well knew that Arthur Pitzer had been carried to that point through the carelessness and negligence of the agents and employees of the defendant; that the child, having been thus wrongfully put off the train at Jackson station, without being placed under the control or in the charge of any person, and without the fault or neglect of his parents, was casually upon the track of the defendant at a point on the line thereof, at or near where a highway crossed it, about one and one-fourth miles north of Jackson station ; that, at that point, between the hours of four and five o’clock p. M., he was run over and killed by a freight train of the appellant; that although he was on the track at a place where ho could be seen, and was seen, by the trainmen for a distance of three-fourths of a mile, no signals of warning were given, but without such signals, and without any effort to stop the train, the employees of the defendant ran the train upon him, although there was an ascending grade, and the train could easily have been stopped. We regard it as quite clear that the appellant was not in fault for allowing the child to get upon the train. If in any event a railroad company could be made liable for carelessly permitting a person, young or old, to get upon one of its passenger trains, it can not be made liable in such a case as that stated by the complaint. It does not appear that the child was not, so far, at least, as the servants of the appellant could observe, in company with adult persons who entered the train at the city of Kokomo, nor does it appear that the appellant’s employees knew, or could have known, that he had no right to take passage. We suppose it to be perfectly clear that a child of tender years may enter a railroad train with — 182 — out subjecting the company to the charge of negligence, and that the mere failure to keep a child off the train will not supply a foundation for an action. We know of no principle that requires railroad companies to keep watch to prevent persons, young or old, from entering their passenger trains at a regular station. If in any case of this character a railroad company can be made liable for allowing a child to enter one of its passenger trains, it can only be a case where facts are stated showing that it was wrong to permit the child to get upon the train, and here there are no such facts pleaded. We conclude, therefore, that the mere fact that the child was permitted to enter the passenger train creates no cause of action against the appellant, for he entered the train as an intruder. Intruders, infants or adults, can not, as a general rule, impose any duties upon the person on whose property they intrude. Lary v. Cleveland, etc., R. R. Co., 78 Ind. 323 (41 Am. R. 572); Everhart v. Terre Haute, etc., R. R. Co., 78 Ind. 292 (41 Am. R. 567); State, ex rel., v. Harris, 89 Ind. 363 (46 Am. R. 169), see p. 366; Nave v. Flack, 90 Ind. 205 (46 Am. R. 205), see p. 206; Evansville, etc., R. R. Co. v. Griffin, 100 Ind. 221 (50 Am. R. 783); Hestonville, etc., R. W. Co. v. Connell, 88 Pa. St. 520 (32 Am. R. 472); Morrissey v. Eastern R. R. Co., 126 Mass. 377 (30 Am. R. 686); Gavin v. City of Chicago, 97 Ill. 66 (37 Am. R. 99); McAlpin v. Powell, 70 N. Y. 126 (26 Am. R. 555); Snyder v. Hannibal, etc., R. R. Co., 60 Mo. 413; Zoebisch v. Tarbell, 10 Allen, 385; Brown v. European, etc., R. W. Co., 58 Maine, 384; Baltimore, etc., R. R. Co. v. Schwindling, 101 Pa. St. 258 (47 Am. R. 706); Atchison, etc., R. R. Co. v. Flinn, 24 Kan. 627. These cases are to be discriminated from those in which one places dangerous agencies where trespassing children are likely to be injured by them; for here the company did what it was perfectly lawful for it to do, and that was, to run a passenger train in the manner in which such trains are usually managed. The class of cases to which we refer, although — 183 — numerous, have no application here. Of this class the following are representative cases: Binford v. Johnston, 82 Ind. 426 (42 Am. R. 508); Dixon v. Bell, 5 M. & S. 198; Lynch v. Nurdin, 1 Q, B. 29; Carter v. Towne, 98 Mass. 567; Railroad Co. v. Stout, 17 Wall. 657; Bird v. Holbrook, 4 Bing. 628; Birge v. Gardner, 19 Conn. 507; Keffe v. Milwaukee, etc., R. W. Co., 21 Minn. 207 (18 Am. R. 393); Nagel v. Missouri, etc., R. W. Co., 75 Mo. 653 (42 Am. R. 418); Evansich v. Gulf, etc., R. W. Co., 57 Texas, 126 (44 Am. R. 586); Townley v. Chicago, etc., R. W. Co., 53 Wis. 626; Bransom v. Labrot, 81 Ky. 638 (50 Am. R. 193); Kansas, etc., R. R. Co. v. Fitzsimmons, 22 Kan. 686 (31 Am. R. 203). The cases last cited all recognize the rule that children of tender years are not to be treated as persons of mature years. This is a reasonable and humane rule, and any other would be a cruel reproach to the law; but the law merits no such reproach, for, throughout all its branches, whether of tort or contract, there runs, like the marking red cord of the British navy, a line distinguishing children of years -too few to have judgment or discretion, from those old enough to possess and ■exercise those faculties. This is a doctrine taught by every man’s experience, and sanctioned by our law. A departure from it would shock every one’s sense of justice and humanity. Cases very closely resembling the present recognize and enforce this distinction, and without substantial diversity of opinion the general principle is recognized, although there is not entire uniformity in its application. Dr. Wharton, in discussing the general subject, says: “ The protection ■of the helpless from spoliation is one of the cardinal duties of Christian civilization; and when those so helpless are young children, this duty is aided both by the instincts of nature and the true policy of the State.” Wharton Neg., section 313. Mr. Thompson says: “The general rule is, that where the injury is caused by the actual negligence of ¿he company, the child can be expected to use discretion only — 184 — in respect of its years; and the total incapacity of a child to-know the danger, and avoid it, shields it from responsibility for its acts. Greater care, therefore, must be exercised in -reference to children than to adults.” 1 Thompson Neg. 452. Another author says: “ When the trespasser is an infant, the railway company, on the one hand, is held bound to exercise a higher degree of care and caution than is required as to adults, and the infant, on the other hand, is not required to exercise a discretion and prudence beyond its years, but only that measure of sense and judgment which 'it may reasonably be expected to possess in view of its age.” Beach Cont. Neg. 211. Cases in great numbers might be collected supporting the general doctrine declared by these authors, and applying it to almost every conceivable phase of the question, but we deem it unnecessary to cite these cases, as there is little, if any, diversity of opinion. The principle of which we are speaking supplies the initial proposition for this discussion, since it enables us to declare that the conductor was bound to use much greater care in dealing with a child of seven years than he would have been required to exercise respecting an older person. The care exercised by him was not such as under the circumstances it was his duty to exercise. Expelling from the train, miles from its home, a child so young as to be incapable of taking care of itself or of comprehending the danger of its situation, without asking-any one to give it attention or look after its safety, was not such care as humanity and justice require; but we do not place our decision upon this point alone, for we think that the conductor’s want of care must be taken in conjunction with the wrong of the engineer and those in charge of the freight train, in negligently failing to stop the train when it was within their power to do so before it ran upon the child. These two leading facts, when combined, make a case establishing negligence on the part of the appellant, and excluding contributory negligence on the part of the child. We can not undertake to comment upon all of the many cases. — 185 — which, declare principles'that rule such cases as this, but we deem it not unprofitable to refer to some of the decisions which light our way to a just conclusion. In Louisville, etc., R. R. Co. v. Sullivan, 81 Ky. 624 (50 Am. R. 186), a man, so drunk as to be helpless mentally and physically, was put off a railroad train, on a cold winter night, by a conductor who knew his condition. The passenger so ejected from the train was severely frozen, and in a very strongly-reasoned opinion the company was held liable. The doctrine of this case is perhaps an extreme one, and to. be carefully limited, yet it is not easy to answer the reasoning of the court or meet the force of the authorities cited. In our own case of McClelland v. Louisville, etc., R. W. Co., 94 Ind. 276, the company was held to be not responsible for the killing of a drunken man who was put off the train and wandered back upon the track and was killed ; but the theory upon which that case was decided hardly meets the question as presented in this case, or in Louisville, etc., R. R. Co. v. Sullivan, supra, for the facts are not the same in the two cases.. The court in the case of Atchison, etc., R. R. Co. v. Weber, 33 Kan. 543 (52 Am. R. 543), approved this instruction : “ Of' course the carrier is not required to keep hospitals or nurses for sick or insane passengers, but when a passenger is found by the carrier to be in such a helpless condition, it is the duty of the carrier to exercise the reasonable and necessary offices of humanity toward him until some suitable provision may be made. ” And it was held that it was proper for the carrier to transport a passenger suffering from delirium tremens to one of its stations, and there place him in charge of the overseer of the poor. Discussing a question somewhat similar to that involved in the cases cited, the Supreme Court of Ohio said : “ It might, perhaps, as far as this case is concerned, be conceded that if a man were so intoxicated as to be without reason, sense, or intelligence, it would be unlawful, as it would be inhuman, to expel him from cars at night, where he would be just as. — 186 — likely as not to lie down upon the rails and go to sleep. We may concede further, that to put off a drunken man, during a bitterly cold night, in the woods, far from any house, when the probabilities were that he would freeze to death before help could reach him, would be as indefensible in law as it would be Avieked and cruel in fact.” Railway Co. v. Valleley, 32 Ohio St. 345 (30 Am. R. 601). These are cases, extreme ones it may be, illustrating the doctrine that regard must be had to the helpless condition of one who enters a railroad train, and that those in charge of the train must do no act which is cruel or inhuman. Granting that these cases are extreme ones, still, the general doctrine which they assert is undeniably a sound one, for through all the cases runs the principle that what humanity requires must be done by those who act Avith knowledge of anotheris helplessness. Weymire v. Wolfe, 52 Iowa, 533; Northern Central R. W. Co. v. State, 29 Md. 420; Walker v. Great Western R. W. Co., L. R. 2 Exch. 228; Swazey v. Union Manfg. Co., 42 Conn. 556; Atlantic, etc., R. R. Co. v. Reisner, 18 Kan. 458; Marquette, etc., R. R. Co. v. Taft, 28 Mich. 289 (opinion of Cooley, J.); Terre Haute, etc., R. R. Co. v. McMurray, 98 Ind. 358 (49 Am. R. 752). This principle supplies a solid foundation for the rule that the age of a child is an important element to be considered in determining whether the person Avho injured him Avas negligent, as Avell as in determining whether the child himself Avas guilty of contributory negligence. We knoAV that there are many cases which hold, and rightly hold, that children may be guilty of negligence. Hathaway v. Toledo, etc., R. W. Co., 46 Ind. 25; Higgins v. Jeffersonville, etc., R. R. Co., 52 Ind. 110; 2 Wood Railway Law, 1272, 1273. A child’s age and helplessness may, however, often excuse Avhere one of mature age would be adjudged in fault, and may also often make an act negligent as to him that Avould not be so as to one of riper years. It is upon this principle that a recent Avriter—who fortifies his assertion by many — 187 — cases—is sustained in saying: “ But there is no presumption that a young child or a drunken person will heed the signals of danger, and the engineer is bound to stop the train if he sees that they make no attempt to leave the track.” 2 Wood Railway Law, 1268ti. Doubtless the rule is to be very guardedly applied to one who voluntarily incapacitates himself, since he himself is guilty of a wrong not easily palliated, and it is not easy for an engineer to distinguish a drunken man from a sober one; but, with respect to a child of seven years of age, it is far otherwise, for nature has incapacitated it and the engineer can readily distinguish from his stature and appearance the diiference between it and a person who has attained years of discretion. Illustrating the subject we are discussing, is a decision by a court which has applied with as much strictness as any in the land the law against children, wherein it was held that negligence could not be imputed to a boy nine years of age who had climbed through a train of freight cars and was injured. Pennsylvania Co. v. Kelly, 31 Pa. St. 372. In another case in that court it was said: “He acted like a child and like a child he must be judged.” Rauch v. Lloyd, 31 Pa. St. 358. In still another case in that court it was held, that where a boy was carried against his will for five miles, and in returning home received injury, the wrongdoer must- respond in damages. Drake v. Kiely, 93 Pa. St. 492. The case of Lovett v. Salem, etc., R. R. Co., 9 Allen, 557, decides that a railroad company is liable for injury to a child ten years of age, who was wrongfully on a street railway car, and jumped from it, while it was moving rapidly, at the direction of the driver; the court placing its decision upon the ground that the child was young and could not be expected to act as an adult would do. It was held in Kline v. Central Pacific R. R. Co., 37 Cal. 400, that the company was liable where a boy sixteen years of age leaped from a train upon which he was a trespasser, at a show of force displayed by the conductor, and the prin — 188 — ciple asserted in Lovett v. Salem, etc., R. R. Co., supra, was accepted as the ruling one. In Meeks v. Southern Pacific R. R. Co., 56 Cal. 513 (38 Am. R. 67), an infant of six or seven years of age was sleeping on the track, and it was held that as those in charge of the train were bound to keep a vigilant watch, the company was liable for injuring the child, that its employees might have seen and rescued from danger. A very able court, speaking by one of its ablest judges, said, of the duty of an engineer: “ If, however, he sees a child of tender years upon the track, or any person known to him to be, or from his appearance giving him good reason to believe that he is, insane, or badly intoxicated, or otherwise insensible of danger, or unable to avoid it, he has no right to presume that he will get out of the way, but should act upon the belief that he might not, or would not, and he should therefore take means to stop his train in time.” Lake Shore, etc., R. R. Co. v. Miller, 25 Mich. 274. Other cases assert similar doctrines, and to them we refer without further comment. Baltimore, etc., R. R. Co. v. State, 33 Md. 542; Isbel v. New York, etc., R. R. Co., 27 Conn. 392; Isabel v. Hannibal, etc., R. R. Co., 60 Mo. 475; East Tennessee, etc., R. R. Co. v. St. John, 5 Sneed (Tenn.) 524. The complaint explicitly avers that there was no negligence on 'the part of the parents, so that the question turns, so far as the element of contributory negligence is involved, solely upon the conduct of the child. It is contended that the injury to the child was so remote that it can not be attributed to the negligent act of the appellant. This question has been recently so fully discussed by us that we do not deem it necessary to again enter upon an extended discussion of the subject. Louisville, etc., R. W. Co. v. Falvey, 104 Ind. 409; Terre Haute, etc., R. R. Co. v. Buck, 96 Ind. 346 (49 Am. R. 168); Dunlap v. Wagner, 85 Ind. 529 (44 Am. R. 42); Billman v. Indianapolis, etc., R. — 189 — R. Co., 76 Ind. 166 (40 Am. R. 230); Cincinnati, etc., R. R. Co. v. Eaton, 94 Ind. 474 (48 Am. R. 179). Many of the cases we have here cited assert a doctrine in strict harmony with our own cases, and, indeed, the doctrine is expressly held in the famous Squib case, upon which authors and courts have founded their statements and decisions for many years. In that case no wilful or malicious tort was committed, for the defendant threw the lighted squib in sport, and this, being passed from hand to hand, at last struck the plaintiff’s ward, and put out his eye. All the judges agreed that the defendant was liable, although they differed as to whether the action should be case or trespass, one of the judges saying that “Wherever a man does-an unlawful act he is answerable for all the consequences.” Scott v. Shepherd, 2 W. Bl. 892. There is, in truth, no case that has been recognized as sound, that holds that the rule as to the responsibility of the wrongdoer is different in cases of actionable negligence from that which prevails in cases of wilful or malicious torts. There is a difference as to the measure of damages, for, where the tort is malicious, exemplary damages may be recovered, but such damages can not be recovered in cases of negligence. This consideration has, however, no influence upon the question of a negligent wrong-doer’s responsibility for the conse■quences resulting from his act. The appellant propounded a question to a person called as •a juror, and the trial court refused to permit it to be answered. The record does not properly present the point which the appellant essays to make upon this ruling, as it sets forth only the question asked the juror. In order to enable this court to ascertain whether any injury was done the appellant, the entire examination of the juror should have been brought into the record. Johnson v. Holliday, 79 Ind. 151. The appellee introduced evidence, over the appellant’s objection, to prove that he was too poor to employ servant’s to take care of his children. The ojection to this testimony was, — 190 — however, too general to present any question. It is settled that objections must be specific. Louisville, etc., R. W. Co. v. Falvey, supra, and cases cited. In one of the instructions given by the court, the pecuniary condition of the appellee, and his inability to employ servants, were submitted to the jury as proper matters to be considered by them. This was error, and, in view of the fact that there was evidence of that character before the jury, prejudicial error. City of Delphi v. Lowery, 74 Ind. 520 (39 Am. R. 98), and authorities cited; Mayhew v. Burns, 103 Ind. 328; Rooney v. Milwaukee Chair Co., 65 Wis. 397. In Hagan’s Petition, 7 Cent. L. J. 311, Judge Dillost used language very similar to that employed by us in City of Delphi v. Lowery, supra, and that language we quote r “ Some of the cases seem to make the liability depend upon the means of the parents, and to countenance a distinction as to contributory negligence between parents able to employ nurses or attendants, and those who are not. This distinction may be doubted; for there is not, in this country, one rule of law for the rich, and a different rule for the poor. It extends its protecting shield over all alike.” As was said in Mayhew v. Burns, supra, “ What some must do, in respect of denying themselves servants, or their children attendants, every other may do, and whether done from choice or necessity, negligence can not be predicated upon the one or excused by the other.” Any other rule would be impracticable as well as unsound in principle. If the pecuniary condition of the parent is accepted as a standai’d, all is uncertain, for no definite amount of pecuniary means can be taken as a guide, since it would be impossible to determine what a parent should be worth in order to impose upon him the duty of employing nurses or attendants for his children. So, too, such a rule as that for which appellee contends would graduate the number of attendants by the wealth of the parent, and thus lead to inquiries entirely foreign to the merits of the case. But, inde — 191 — pendent of these considerations, the rule is unsound in principle, because it would impose upon all who use our streets- and highways, or who conduct manufactories, or own property, an unjust burden, as it would make them liable to the negligent, and this is a duty that ought not to be imposed upon any one. Filed April 14, 1886. The rule which we have adopted is just to all, the rich and the poor alike, and it imposes no hardship upon any one, for it only requires that parents shall be ordinarily prudent and careful, whether rich or poor. Judgment reversed.