Morgan v. Illinois & St. L. Bridge Co.

DILLON, Circuit Judge. The only exception to the master’s report relied on by the counsel for the receivers, is that the master erred in not finding that the parents of John Hagan were negligent, and that such negligence defeats the right of the infant to recover the amount of the damages sustained by the negligence of the receivers. In the excellent report of the master, the principal cases upon the effect of the negligence of parents in defeating the right of action for a ■ negligent injury to their child are collected. They cannot be entirely reconciled, although, when the facts of the particular cases are considered, the discrepancy is not as great as at first it would appear to be. Upon the facts in this case, we entertain .no doubt that the petitioner is entitled to compensation for the injury he sustained. The deep, unguarded excavation in the street was not only a public nuisance, but a dangerous one. The receivers ought not to have permitted it to continue. The natural instincts and habits of children lead them to play; and it is scarcely possible, and certainly not practicable, to keep them entirely off the' streets, or under constant supervision. The injury here was not caused, by any person or agency in the lawful use of the street. What-right has the tunnel company . to leave a dangerous pitfall in the public way, and then to insist that all the children in the neighborhood shall be imprisoned or .kept off the street? If the petitioner’s .parents had lived immediately upon or very near this excavation, and, knowing the danger of permitting their child to go at large, had actually permitted it to go to the place of danger, or suffered this to be done through actual negligence. the case might present more difficult questions than now arise. The master does not find that the child was' knowingly, or even negligently, permitted .to go to, or remain in, the vicinity of the excavation. His parents lived over two blocks distant, and the finding is that he “strayed away - from home,” and was injured while at play with other children. It is not shown that "the child was in the habit of going there; "and. .as the receivers’ negligence is positive and actual, and was the direct cause of the injury, and as the onus to establish the defence of contributory negligence is on the receivers (Railroad Co. v. Gladman, 15 Wall. [82 U. S.] 401), and they have failed to show such negligence, they are liable. It is not necessary, - in this view, to go into the learning upon the subject of imputable negligence of parents to children, for in this case it is not' shown that the parents were at fault in the child being at the place of the accident at the time when [752] the accident happened. 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 at-ienda uts 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. The common law is justly distinguished for its solicitude for the public safety, and any person or corporation that illegally imperils the lives, limbs, or health of the people is liable. The tunnel company has no more right, by having a dangerous excavation in the public ways, unnecessarily to impose upon the rich the duty to employ an attendant for their children than to impose upon the poor the impracticable duty of never allowing their children to escape from sight lest they may be injured by its wrongful and illegal act. 5 South. Law Rev. (¡84. The exceptions are overruled, and an order will be entered in conformity with the report of the master. Ordered accordingly. NOTE. “ ‘People in the situation of life of those who had custody of the child.’ said Wagner, J., in a recent case, ‘cannot always attend to it strictly; and if it escapes from them unawares, it must not be injured simply because it so escapes.’ Isabel v. Hannibal, etc., Ry. Co., 60 Mo. 483. In another case the same learned and humane judge, discussing this question, said: ‘To say that it is negligence to permit a child to go out to play unless it is accompanied by a grown attendant, would- be to hold that free air and exercise should only be enjoyed by the wealthy, who are able to employ such attendants, and would amount to a denial of these blessings to the poor.’ O'Flaherty v. Union Ry. Co., 45 Mo. 74. In a case very similar to this, another very learned and capable judge used the following language: ‘The doctrine which imputes the negligence of the parents to the child in such a case as this is repulsive to our natural instincts, and repugnant to the condition of that class of persons who have to maintain life by daily toil. It is not the case where the positive act of a parent or guardian has placed a child in a position of danger, necessarily requiring the care of the adult to be constantly exercised, as where a parent takes a child into the cars, and, by his neglect, suffers it to be injured by straying off upon the platform. But here a mother, toiling for her daily bread, and having done the best she could, in the midst of her necessary employment, loses sight of the child for an instant, and it strays upon the track. With no means to provide a servant for the child, why should the necessities of her position in life attach to the child, and cover it with blame? When injured by positive negligence, why should it be without redress? A negligent wrong is done; it is incapable of contributing to it: then why should the wrong not be compensated?’. Agnew, J., in Kay v. Pennsylvania R. Co., 65 Pa. St. 276. The same views are reasserted in Philadelphia & R. R. Co. v. Long, 75 Pa. St. 257. “In Littlefield v. Atlantic & Pac. Ry. Co., (intervention of McAuley), the learned district judge, sitting in this court, awarded an old man $500 as damages on account of having been wrongfully expelled from a passenger train of the receivers by its conductor, and compelled to walk three miles, crossing a high and dangerous bridge, to get to his home. This was a case for exemplary damages. On the other hand, in West v. Forrest, 22 Mo. 344, the defendant. in beating a female slave, accidentally inllicted some blows upon her mistress, the>plaintiff. There does not appear to have been any attempt to prove that the plaintiff had suffered any direct pecuniary loss. The court sustained a verdict for $400, saying: ‘The plaintiff’s case was fully made out before the jury, and by their verdict of $400 they exhibited their sense of such a wrong, and properly vindicated the injuries and wounded feelings of the plaintiff.’ In Cracker v. Chicago & N. W. Ry. Co., 36 Wis. 657, a railway conductor kissed a female passenger. Here was certainly no direct pecuniary loss: but the company was compelled to pay $1.000 for it. The damages were expressly placed upon the ground of compensation. In McKinley v. Chicago & N. W. Ry. Co., 44 Iowa, 314, the plaintiff was forcibly and successfully resisted by a brakeman in attempting to enter a passenger car of the defendant. There is no statement of the evidence as to the loss of time incurred or actual injury received; but these appear to have cut no figure in the case. It was charged by the court below, and held by the court above, that it was not a case for exemplary damages. The discussion related to the propriety of an instruction that the jury might take into consideration and give damages for ‘the outrage and indignity’ put upon the plaintiff. The instruction was held correct. Twelve thousand dollars damages were held to indicate passion and prejudice: but the court ordered the verdict to stand, if the plaintiff would accept a judgment for $7.000. Beck, J., however, thought $12.000 not too much, and Day, J.. dissented, holding that outrage, indignity, and mental suffering are not elements of compensatory damages. In City of Chicago v. Jones, 66 Ill. 349, an award of $1,000 to a. servant girl for breaking her right arm was not deemed excessive. In Collins v. Council Bluffs, 32 Iowa. 324. $15,000 were awarded a married woman for the breaking of the bone of her left thigh, in conseauenee of ice accumulated on the sidewalk. It appeared that it made her a cripple for life. The court refused to disturb the verdict” (The foregoing is extracted from the master’s report)