Dubiver v. City Railway Co.

Mr. Justice Wolverton,

after stating the facts as above, delivered the opinion of the court.

The trial court, after instructing the jury as to the law relative to contributory negligence, proceeded to say: “But in the case of children the court cannot say this as a matter of law. In such cases it is more or less a mixed question of law and fact”—and further instructed as follows:

“ The evidence shows that plaintiff’s minor was at the time a minor somewhere about fifteen years of age. This fact, hbwmver,does not excuse him from the obligation to exercise care according to his knowledge and capacity to understand danger, as boys of that age ordinarily are, and to use ordinary care to avoid it; and if you find from the evidence in this case that plaintiff’s minor had sufficient capacity to understand the danger of crossing a railroad track in such a situation, it was his duty to use ordinary care in crossing the track, so as to avoid getting in the way of moving cars ; and if he failed to use such care, and because of such failure was injured, he was guilty of contributory negligence, and cannot recover in this action. A child would not be expected to use the same degree of care and prudence that a person of older years and larger discretion would use; but you are to take into consideration the age of the plaintiff’s minor, and his character, and all the circumstances and facts—all the evidence throwing light upon the manner in which any injury may have occurred—and then determine whether he used the care *231 which an ordinarily prudent boy of his age, under those circumstances, should have used. If he did use such care, he was not guilty of contributory negligence. If he failed to use such care, then he was guilty of contributory negligence, and the plaintiff cannot recover.”

To these instructions exceptions were taken and reserved, and the sole assignment of error contained in the record is relative thereto. Counsel for appellant insist that the instructions are erroneous (1) because the defendant had no knowledge or notice that the person in charge of the horse and wagon was a minor ; that the occupation in which he was engaged was one for an adult, and not for an infant, and the defendant’s liability could not in any way be made to depend upon the driver’s capacity from considerations of his age ; and (2) because the undisputed evidence conclusively shows that the person injured, although a minor, thoroughly understood the situation, the condition of the business in which he was engaged, the .risks and hazards attending it, and especially of crossing the tracks of a street railway upon which were cars propelled by electricity, and therefore assumed all the hazards of the position, from which it follows that his infancy was wholly immaterial, and unavailable to limit his liability, or to enlarge that of the defendant.

1. The first reason advanced as a basis of counsel’s position is manifestly without relevancy, under the conditions in which the case comes here. All the instructions pertaining to the negligence of the defendant are admittedly unexceptionable, and no objections were made or exceptions saved thereto in any form, so that the case had passed from the point where plaintiff had the laboring oar. The instructions complained of relate solely to the defense of contributory negligence—a matter devolving upon the defendant to establish—which is entirely distinct, and altogether another phase of the trial procedure. The plain *232 tiff’s case had become a closed book, the record unexceptionable. Not so upon the other hand. The defendant was not satisfied with the manner in which its separate and special defense was submitted to the jury, hence its exceptions, and these exceptions raise the sole and only question with which we can deal. In other words, the record shows that plaintiff’s case was properly submitted, while the manner in which the defendant’s case was submitted is alone questioned, so that the first reason advanced as a basis of counsel’s position is without potency now.

2. The second reason is forceful and cogent, and the problem presented is not a little difficult of solution. The doctrine of the assumption of risks and hazards incident to the occupation in which a person has engaged does not apply otherwise than as between master and servant, but no such relation existed between the defendant and the plaintiff’s minor herein.

3. Counsel urge, however, that as the plaintiff’s minor presented the same proofs of the exercise of care in crossing defendant’s tracks as if he had been of full age, and took the same precautions that an adult would have done, using ordinary care and prudence (that is, by looking both ways as he approached the defendant’s tracks, to ascertain if any cars were in sight, and then proceeding across them), and that, as he understood and appreciated the situation and the business in which he was engaged, and all the risks and hazards pertaining to it, and especially of crossing the tracks of a street railway, therefore the same rule would apply to him as to an adult, and the fact of his infancy was wholly immaterial, and could be of no avail to limit his responsibility. This, it seems to us, does not include the whole case. The very point of dispute centers about the boy driving off the tracks after he had entered upon them. His testimony tended to show that he was proceeding straight ahead in a walk, and at the rate *233 in which he had crossed all the tracks but one, while the defendant’s evidence was to the effect that he stopped, or nearly so, with the hind wheels of his wagon upon the east or last track before he had cleared it enough to let the car pass, which action on his part, defendant claims, was the proximate cause of the collision resulting in the injury. Here is involved a question of fact as to what he really did, and it may then be inquired, did he in this particular respect exercise the care and caution that an adult would have used ? If he did, and was hurt, the defendant, if negligent, was clearly liable. But it is denied that he did, and asserted that he should have so acted, and this constitutes the very ground for the alleged contributory negligence which would exonerate the defendant. Because the minor exercised the care of an adult in looking before he started to cross the tracks, it does not follow that he exercised or ought to have exercised the care of an adult in crossing and clearing the tracks of the defendant. As to his understanding and appreciating all the risks and hazards of the business in which he was engaged, that is a fact in a measure assumed, when compared with the understanding and appreciation of an adult under like circumstances and conditions.

The real question involved is whether the court should say, as a matter of law, under the testimony, that the minor was, to all intents and purposes, an adult, and should have been held to like care, foresight, and responsibility. There are cases, properly decided, too, where the courts have said, as a matter of law, that the minor, considered as yet immature, was guilty of such contributory carelessness and negligence that he ought not to recover. Such is the case of Dietrich v. Baltimore & H. S. Ry. Co. 58 Md. 347, where a minor attempted to board a moving street car by the front platform having one of the steps broken off, when there was a safe way of entry by the rear platform, *234 affording ready and easy access. In this case Mr. Justice Alvey, in his opinion, says: “Now, conceding that there was negligence on the part of the defendant in running the car with a .broken or an insufficient step to the front platform, and that there was fault in the driver in not stopping the car upon the approach of the plaintiff, the question is, did the plaintiff so directly contribute to the happening of the accident by his own want of ordinary and reasonable care as to preclude the right of recovery for the injury suffered ? This is not a question that arises upon conflicting evidence, or where inferences might be drawn from the proof of indirect circumstances, in which cases the question would be exclusively for the jury. * * His want of caution, and his reckless disregard of the danger in attempting to board the car while in motion, would clearly appear to have been the direct cause of the accident. He was old enough to know and understand the risk that he incurred, and, if he had used his eyes, he could not have failed to perceive that the step had been broken from the platform. Under such circumstances, neither he nor his father can have any right of action against the defendant.” Another case grounded upon the same principle is Thompson v. Buffalo Ry. Co. 145 N. Y. 196 (39 N. E. 709). The plaintiff’s minor was a girl of fourteen years, and the court, in rendering its opinion, says: “Although a minor, no claim is made that Alcy was not sui juris. While she may not have possessed the judgment, caution, and prudence of persons of more mature years, she was expected and required to exercise the measure of care and caution that is common and usual in one of her age.” But the case was taken from the jury on a motion for nonsuit. Another case that has come under our observation is Nagle v. Allegheny Valley R. Co. 88 Pa. 35 (32 Am. Rep. 413). Here the case was taken from the jury by invoking the presumption that a child of fourteen years had suffi-

*235 cient capacity to be sensible of danger and to have the power to avoid it, which presumption, it was said, would stand until overthrown by clear proof of the absence of such discretion as is usual with infants of that age. This case, although the opinion was rendered by Mr. Justice Paxson, a jurist of eminence and ability, does not seem to have been followed subsequently in the same State or elsewhere, so far as our research has extended. The doctrine of the two cases preceding the last cited was invoked in Cooper v. Lake Shore & M. S. Ry. Co. 66 Mich. 261 (33 N. W. 306, 11 Am. St. Rep. 482), but the court refused to apply it;, saying, in effect, that many cases are cited in which children have been held accountable for contributory negligence, but that the case under consideration was not one of them, the evidence being conflicting upon the very point in dispute.

But a case of distinct analogy to the one at bar is Wright v. Detroit, G. H. & M. Ry. Co. 77 Mich. 123 (43 N. W. 765). There the plaintiff’s intestate, a boy under fifteen years, while riding on a sleigh driven by another boy of the same age, was struck by defendant’s, train and killed. There was a conflict in the testimony relative to the defendant’s negligence, and that part of the case was, as here, properly submitted to the jury. The trial court, as was. shown by its charge, held the boy who was killed to the same degree of diligence in his efforts to avoid the accident which overtook him as would be required of an adult, and the exception in the supreme court was directed to this holding; but, in deciding the case, the supreme court, speaking through'Mr. Chief Justice Sherwood, says : “The rule is this : ‘That the care and discretion to be used by children, and for which they must be held chargeable, must be proportioned to their age ¿nd capacity; and, while it must be ordinary care, it is not the ordinary care required of an adult under the same circumstances.’ ” And after alluding *236 to some of the authorities, the learned chief justice continues: “I think the law may be regarded as well settled in this State that, in determining the question of contributory negligence, not the same degree of caution is required of an infant as in the case of an adult, and, when such negligence is sought to be charged against a lad cf less than fifteen years of age, the rule clearly applies; and the charge of the court is erroneously defective which fails to state the rule, and challenge the attention of the jury to it, in applying the law to the facts and circumstances such as are disclosed by the evidence in this case.” There was a dissenting opinion by Mr. Justice Campbell, in which he says: “There are, no doubt, cases where, peculiar knowledge is an element to be considered, aside from ordinary sense and ordinary experience, and where the lack of such knowledge is more likely to exist in minors or youths than in persons of experience, but the particular risk in this case was one which would be as palpable to a boy of fifteen as to a man. A much younger boy would comprehend the danger of slowly crossing a railroad when a train is approaching or likely to approach.” This, however, concedes the rule as announced in the main opinion, but denies its application in that case.

Mr. Justice Hunt, in Railroad Co. v. Gladmon, 82 U. S. (15 Wall.) 401, 408, says: “Of an infant of tender years less discretion is required, and the degree depends upon his age and knowledge. Of a child of three years of age less caution would be required than of one of seven, and of a child of seven less than of one of twelve or fifteen. The caution required is according to the maturity and capacity of the child, and this is to be determined in each case by the circumstances of that case.” The rule was subsequently applied by the same eminent jurist in the turntable case of Railroad Co. v. Stout, 84 U. S. (17 Wall.) 657. This court has spoken to the same effect in Cassida v. *237 Oregon Ry. & Nav. Co. 14 Or. 551 (13 Pac. 438), and Schleiger v. Northern Term. Co. 43 Or. 4, 14 (72 Pac. 324). So in Haycroft v. Lake Shore & M. S. R. Co. 2 Hun, 489, where the party injured was a girl of sixteen years, the court said with reference to the controversy: “Now, if there is any allowance to be made in measuring the degree of care which this young girl was bound to use, for her youth, her inexperience, for the tendency of persons of her age to allow their attention to be given to objects of interest in their immediate view, and to overlook dangers from causes not immediately in view, then it was for the jury to say whether this young girl did not, under all the circumstances, use all the care and diligence to guard against danger that could be reasonably required from one of her age.” The trial court took the case from the jury, but it was reversed upon that account, the fourth department of the general term of the supreme court, in passing upon the case, using the language above quoted. This case was affirmed on appeal to the court of appeals: Haycroft v. Lake Shore & M. S. R. Co. 64 N. Y. 636. So, also, in the case of Daniels v. Clegg, 28 Mich. 32, which was that the trial court was correct in charging that “the jury should consider the age of the daughter [she being the person injured and about the age of twenty years], and the fact that she was a woman,” and “that she would not be guilty of negligence if she used that degree of care that a person of her age and sex would ordinarily use.” The principle is of unquestioned soundness, and has been applied in many cases: See Cooper v. Lake Shore & M. S. R. Co. 66 Mich. 261 (11 Am. St. Rep. 482, 33 N. W. 306); East Saginaw City Ry. Co. v. Bohn, 27 Mich. 503; Quill v. Southern Pac. Co. 140 Cal. 268 (73 Pac. 991); Hassenyer v. Michigan Cent. R. Co. 48 Mich. 205 (12 N. W. 155, 42 Am. Rep. 470); Plumley v. Birge, 124 Mass. 57 (26 Am. Rep. 645); Consolidated Trac. Co. v. Scott, 58 N. J. Law, 682 (34 Atl. 1094, 33 *238 L. R. A. 122, 55 Am. St. Rep. 620); Kerr v. Forgue, 54 Ill. 482 (5 Am. Rep. 140); Bridger v. Railroad Co. 25 S. C. 24; Kline v. Central Pac. R. Co. 37 Cal. 400 (99 Am. Dec. 282); McGuire v. Chicago M. & St. P. Ry. Co. (C. C.) 37 Fed. 54.

Messrs. Dolph, Mallory, Simon & Gearin presented a brief for the motion.

4. In the case at bar the instruction incorporating the principle was proper, unless the minor had arrived at man’s estate in judgment, prudence, and forethought; and, in order to declare that it was improper, we should be able to say, as a matter of law, that such was the case. This we are impressed we cannot do. Just at what period in a child’s advancement in years he is to be considered to have arrived at maturity, and to.have assumed all the responsibilities-of a man, as distinguished from a child, is an indeterminate quantity. But if, as in the case of Wright v. Detroit, G. H. & M. Ry. Co. 77 Mich. 123 (43 N. W. 765), the instruction was proper where the child was just under fifteen, and in Haycroft v. Lake Shore & M. S. R. Co. 2 Hun, 489, where the girl was sixteen, and in Daniels v. Clegg, 28 Mich. 32, where she was twenty, there can be no reason for believing that it was improper in this case. It could not be so, as the comparative ages will not warrant it. Whether a boy of the capacity of the plaintiff’s minor was able to apprehend the danger involved, and had sufficient sagacity to avoid it successfully, and yet, notwithstanding his minority, he was negligent, is a question that would properly arise upon a motion for nonsuit; ''but it could not be insisted on in this case, as the bill of exceptions shows there was a conflict in the testimony relative to whether he was negligent in that respect or not. The judgment of the trial court will be affirmed, and it is so ordered. Affirmed.