Hughes v. Detroit, Grand Haven & Milwaukee Railway Co.

Campbell, C. J.

Plaintiff, a little colored boy, who is now between six and seven years old, and was, when injured, five years old or under, recovered judgment in the superior court of Detroit for personal injuries causing the loss of a leg and some other damage. In July, 1884, towards the close of the day, but during daylight, according to the claim of his declaration, he was on the front of a switching locomotive which was making up and distributing freight trains, and standing upon a plank step used for switchmen and brakemen to stand upon in their yard work, and, as he asserts, was thrown off by a sudden start or a sudden stop, and *12 run over. The negligence alleged was the failure of the train .men to put him off before moving, and the rapid action in starting and stopping. Other facts were set up concerning the condition of the yard in which the accident happened, which ran from Hastings street across a block, and. the use of it as a place of pastime by children, and some similar matters, all of which, although gone into on the trial, were finally ruled to be improper by the judge in his charge, This final ruling was in accordance with the decision of this Court in Chicago & N. W. Ry. Co. v. Smith, 46 Mich. 504, concerning such premises, where it was held, in a very similar case in all its circumstances, that the company could not be held, under such circumstances, for anything less than wanton and gross negligence involving reckless misconduct.

Under the charge, as already given, the jury were directed mot to find for plaintiff unless the engineer actually saw the plaintiff on the foot-board. If so, the court held he should not have started the train while the boy was on it, but should have ordered him off; and, in giving this charge, the court said it was conceded that the boy was on the foot-board, and assumed the boy said the engineer saw him before starting.

It was not disputed, but admitted on the argument in this Court, that, if the engineer actually saw the boy on the foot-board before moving, he would be bound to use efficient care to prevent injury to him; but it is denied that he was on the foot-board, or, if so, was seen by the engineer, or any one else, in that position. The fact that the boy himself is the only witness who says the engineer saw him renders another question important, which is how far his testimony was admissible.

Upon examining the testimony, we find that, while there are witnesses for plaintiff who swear to his being on the foot-board, they do not agree as to the circumstances or cause of his being thrown from the board. On the part of the defense there is testimony which is not consistent with his being *13 there, as well as positive testimony that he was not seen if there. The declaration does not aver that he was seen, bnt merely that he might have been seen with proper diligence, bnt it does aver he was on the board and thrown off.

There was conflicting testimony as to the likelihood or possibility of seeing him on the board. He himself says he ran back and forth over it while the engine was not moving, and finally got on it just before starting, and then stayed on till he fell off. He also says he faced the engine, while the other testimony would not so indicate.

All of this shows the great importance of this particular fact, and the danger of assuming it when the testimony conflicted. So it was equally important to know whether, if seen at all, he was seen before starting, as the duty to keep off a child entirely could not be quite the same as the duty which would arise from seeing him already on a moving train. Most of the testimony indicates that there was nothing unusual in the running or stopping of the train after it started. This theory was not laid before the jury so as to call their attention to its significance.

The boy’s own testimony as to how he fell off is not quite the same in the direct as on the cross-examination. On the direct, the impression he gives is that he was thrown off by a sudden starting and jerk. On the cross-examination he says he was carried forward, and in no other direction, with the engine, until near the switch, and then fell off close by the switch. Rosa Bushey, one of his witnesses, on the other hand, says the engine went back with him towards Hastings street before taking him east to the switch. . Tean, another of his witnesses, swore his back was towards the engineer while he was standing on the board, and that his hands were under the hand-rail. The testimony was by no means uniform upon the important matters on which this charge bore.

The charge seemed to go upon the idea that the plaintiff’s account was the one to be chiefly acted on by the jury, in *14 connection with his testimony concerning the engineer, and there was no other testimony which covered that matter directly. He does not swear positively that the engineer saw him, but his testimony undoubtedly tends that way, but, when all compared, leaves the time and circumstances of such seeing in doubt. Without it, as the court substantially charged, there was no case for the jury. In connection with this there was testimony of the plaintiff himself that the engineer, when he saw him, told the fireman not to ring the bell until the little fellow got off, and there is no testimony that after this warning the boy showed himself, if he did at all, to the engineer. The court committed error in treating controverted facts as undisputed, as well as in saying the plaintiff should recover if the engineer saw him, without reference to the time and circumstances of seeing him.

Passing by minor points, this makes it necessary to determine concerning the admissibility of this proof. It has been held by this Court, as well as courts generally, that the fact that a child is under seven years does not create an absolute disability to testify. This was held in McGuire v. People, 44 Mich. 286, and is the doctrine of the text-books. But the authorities all agree that a child cannot testify unless capable of appreciating the obligation of his oath, if he takes an oath, or of his affirmation if that is substituted. And this is upon the ground that a witness must be under some pressure, arising out of the solemnity of the occasion, beyond the ordinary obligation of truth-telling. 1 Greenl. Ev. § 36?; 1 Phil. c. 2 (C. & H.), and notes. One or the other of these methods of attestation is required of all witnesses, children or adults, and persons unsworn cannot testify unless they prefer the other form, which in this State is under the pains and penalties of perjury.

The fact that this child was to be put under oath or affirmation was not brought to his attention at all, so as to show whether he d.d or did not understand the bearing or effect *15 of it. He merely said he must tell the truth, or he would go to hell; but, when asked about any other consequences, die showed entire ignorance, and only said that his mother told him the day before that he would go to hell if he did not speak the truth. This is all that he said bearing on his veracity. He was examined by counsel, and not particularly tested by the court, and the court, without making any personal examination, or certifying or in any way giving an -opinion that the boy understood the nature or obligation of an oath or affirmation, left it all to the jury, to be tested by the ordinary questioning and cross-questioning by counsel.

This is what might, no doubt, be safe with many other persons besides children who usually tell the truth, and may have their truth substantially tested, whether sworn or not. .But the law entitles parties to insist that all witnesses shall be put under some solemn obligation before testifying, and -excludes witnesses who are incapable of understanding its sanction. As Mr. Starkie very well explains it, this is not done because the law imputes guilt or blame to those who do not appreciate it, but because it requires the highest attainable sanction for testimony. 1 Starkie, Ev. 22. It is not left to courts to let in everything which, in their general opinion, or in the case of the particular witness, might be safe. Neither does it rest on any particular belief. Any one may take the oath or obligation that accords with his own opinions, but he must do the one or the other. And he must be able to comprehend it. Upon this there is no conflict in the cases. It is necessarily to be left very much to the discretion of the trial judge if he undertakes to exercise that discretion, and acts upon such an examination as satisfies his own mind. He should conduct this examination as in his .judgment will be effectual. It cannot safely be left to counsel to make the examination. In McGuire’s Case, before referred to, the judge gave a careful personal examination to the child, and formed a distinct opinion of his own, founded *16 on that examination. As the preliminary inquiry cannot be- and is not under oath, there is the strongest reason for very-careful action by the judge himself on his official responsibility. The cases and text-books recognize this distinctly. See 1 Greenl. Ev. §§ 367, 368, and notes; 1 Edw. Phil. Ev. 11, and notes. In England it has been hejd that recent teaching for the occasion is not in itself sufficient, because-the knowledge thus received may not be comprehended. 1 Edw. Phil. Ev. 12; Rex v. Williams, 7 Car. & P. 320. A. careful judicial examination is much more satisfactory than answers which may or may not be really intelligent. The-child’s capacity and disposition to answer correctly and candidly such questioning as may be given is of the utmost consequence, because even among mature witnesses it is not. always easy to discriminate between actual knowledge and what is accepted on hearsay and inference. It is obviously necessary for the court to be satisfied that the child will be-disposed to tell the truth under some sense of obligation.

In children of tender age no reasonable person would expect a complete power of discriminating between his means- and sources of knowledge; and more or less undesigned coloring and misrecollection is almost inevitable. There can be no criminal responsibility in a young child, and the care used must, therefore be rather in ascertaining his capacity and disposition than in impressing the terrors of the law.

We are compelled to apply the law as we find it, until changed by legislation.1 But we are greatly impressed with the practical imperfection of the present rules. In France, and probably elsewhere, the courts refuse to administer an *17 oath to children of tender years, and allow them to be examined without anything more than suitable cautions, leaving their statements on direct and cross-examination to be taken for what they are worth. This seems to be a sensible proceeding, and is probably quite as efficacious as our own system, and less likely to abuse. There is a proper desire in courts to receive such testimony as will throw light on the case, and there is no doubt that in practice children are often allowed to testify whose legal capacity to do so is very liberally construed. It would be better, we think, to put their testimony on the more rational ground that it is calculated to be of some value, and capable, under a proper examination, of being reasonably well weighed for what it is worth.

The other points do not require much consideration. It is possible the instructions concerning damages were open to some criticism, but the judge appears to have desired to prevent any wild estimates, and it is not very easy to be precise concerning all the elements to be considered in such a ease. The charge was intended to keep out improper considerations as far as possible, and to undo some rulings made earlier in the case which were found improper. In cases like this, however, it is not possible, after argument, to undo the effect of important testimony once in, and impressed on the jury by counsel.

For the reasons given, the judgment should be reversed and a new trial granted.

Sherwood and Champlin, JJ., concurred.

Act No. 82, Laws of 1887, provides:

“ That whenever a child under the age of ten years is produced as. a witness, the court shall, by an examination made by itself publicly or separate and apart, ascertain to its own satisfaction whether such child has sufficient intelligence and sense of obligation to tell the-truth to be safely admitted to testify, and in such case such testimony may be given on a promise to tell the truth, instead of upon-oath or statutory affirmation, and shall be given such credit as to the-court or jury, if there be a jury, it may appear to deserve.”