Gunn v. Ohio River R.

BranhoN, Jud&e:

Two little boys, Henry C. Mayes, not quite five years old, and Luelza Mayes, about six years old, were killed by a *680 train on the Ohio River Railroad, and this is a suit by the administrator of Henry C. Mayes against the Ohio River Railroad Company to recover damages for his death. The briefs of counsel are elaborate and able, laying down all the propositions arising, and citing all the law necessary for decision, and have been very helpful in the decision of the case.

If Henry C. Mayes had been an adult, no recovery could be bad for his death, as he met his sad and early death on the railroad track, and the defense of contributory negligence would defeat recovery; but a child of the tender years of this .child is not chargeable with contributory negligence, for want of judgment, discretion, and presence of mind to know and avoid danger. Dicken v. Coal Co. (this term) 41 W. Va. 511 (23 S. E. 582); Westbrook v. Railroad Co. (Miss.) 6 South. 321; Bottoms v. Railroad Co. 114 N. C. 699 (19 S. E. 730); Summers v. Brewing Co. (Pa. Sup.) 22 Atl. 707. The law is clear that those in charge of a train must, by keeping up a reasonable lookout, use fairly ordinary care to discover animals and persons on the track, both to save them and passengers from injury. The public interest and necessity, not merely the company’s, demand that the company have sole possession of its track; but, as people live and move along the route, they do go upon the track; children, in their thoughtlessness and indiscretion, will go upon it; stock will wander upon it; and sheer necessity calls for such care as is exacted by this rule. Gunn v. Railroad Co. 36 W. Va. 165 (14 S. E. 465); 2 Wood, Ry. Law, § 320; opinions in Raines v. Railroad Co. 39 W. Va. 50 (19 S. E. 565). Some courts hold that no duty lies on the company to look ahead for persons — on the track, as it has exclusive right to its track except at crossings, and they are trespassers; but we have, held that there must be a lookout even for live stock and ordinary care to prevent injury to it. Layne v. Railroad, Co. 35 W. Va. 438 (14 S. E. 123) and cases. And, certainly, the same .care would be required so far as infants, deaf and other disabled persons are concerned, if not as to others. But our Court has settled this in cases above cited. If a ■child trespassing on a railroad track is struck by an en *681 gine, the company is liable if the engineer, by such careful and vigilant lookout as is consistent with other duties, could have seen the child in time to prevent the accident. Railroad Co. v. Grablin, 38 Neb. 90 (56 N. W. 796 and 57 N. W. 522); Bottoms v. Railroad Co. 114 N. C. 699 (19 S. E. 730); 2 Wood, Ry. Law, § 320. So if the child is going towards the track, or running near it, evidently going on it. An adult seen upon the track, the presumption is that he will get off, but not so with little children. When they are seen on the track, the duty is to stop and save them. Raines v. Railroad Co. 39 W. Va. 50 (19 S. E. 565); Wood, Ry. Law, § 320; Bottoms v. Railroad Co. 114 N. C. 699 (19 S. E. 730). Such is the law)of the subject. What are the rights of the parties under it upon the facts? The defendant withdrew the case from the jury by a demurrer to the evidence. This has an important bearing as certain principles apply in deciding a case on such demurrer.

A demurrer to evidence by the defendant admits all that can reasonably be inferred by a jury from the plaintiff’s evidence, and waives all the defendants contradictory evidence, or evidence the credit of which is impeached, and all inferences from the defendant’s evidence that do not necessarily flow from it. The evidence must be interpreted most favorably to the demurree, so that he may have all the benefit which a verdict in his favor by the jury would give him. In determining the facts inferable from the evidence, where there is grave doubt, those inferences or conclusions most favorable to the demurree will be adopted; and, unless there is a decided preponderance of probability or reason against the inference that might be made in favor of the demurree, such inference ought to be made in his favor. If the evidence is such that, if there were a verdict in favor of the demurree, the court ought not to set it aside, then, on the demurrer to the evidence, the court ought to give judgment against the de-murrant. Stolle v. Insurance Co., 10 W. Va. 546; Garrett v. Ramsey, 26 W. Va. 345; Franklin v. Geho, 30 W. Va. 27 (3 S. E. 168); Fowler v. Railroad Co., 18 W. Va. 579. Keeping in mind these principles, let us look at the evidence to see what inferences ought to be made from it.

*682 The children were killed on a little trestle over a small stream, while sitting on the guard rail. The turning question is: Had they been there long enough before the train struck them to have enabled the trainmen to see them in time to save them, as the plaintiff claims they had been, or did they go upon the trestle when the engine was within fifty feet or a very short distance of them, too short to save them, as the defendant claims? The engineer says he could see the track for half a mile or more, as it was straight, and he was looking out, and could see over the trestle, and could see nothing on it; that there were some willows near the trestle, which cast a shade over part of it. He says he saw nothing till within forty or fifty feet of the trestle, wheu he caught a glimpse of something between the willows or on the trestle (he could not say which) when he sounded the whistle, and it moved, and he saw it was children. He said they were not before on the track to be seen. They were there when killed. We know this. When did they go there? They were sitting astraddle the guard rail when the engine struck them, iudisputably. This leaves the inference that they had been there some time. If interest in the train called them from the willows, would they likely have sat down or stood up, alive with interest ? If they had so recently gone upon the trestle, is it not reasonable to say that the engineer, on the lookout, as he says, would have seen them — two children walking? The train was dashing on at thirty miles an hour, and as it would take some time for them to go upon the trestle, and sit down, they must have been on it some time before the engine was within fifty feet; that is they must have been there when the engine was further distant than that distance. The engineer does not say he saw them going on the trestle, though we would infer from his evidence that they suddenly went upon it. Would he not have seen them that bright June morning at eight o’clock, with a straight track and unimpeded view for half a mile ? If, as he says, the willows shaded one corner of the trestle, tending to prevent his seeing them sitting still, would he not have seen two children moving, in the act of going upon the trestle.

The fireman had been engaged in coaling the engine, and, *683 when he finished, he saw the children sitting on the trestle, forty or fifty feet ahead. Going no further, taking these facts and the statements of these trainmen, I say that the inference that the children were sitting on the trestle some time before the coming of the train is more reasonable than that they suddenly appeared upon it, just before they were struck. And remember, in doubt, we must make the inference most favorable to the demurree. The engineer does not contradict this inference by telling us that he did see them all at once go upon the trestle. The inference does not necessarily flow from his evidence that they did all at once go upon the trestle. Unless there is a decided preponderance of probability or reason in favor of this sudden coming of the children upon the trestle, we can not make it, but must make the other, under a demurrer to evidence.

But add other evidence: A witness says he passed over this trestle, and saw the children sitting upon it, and the train came, in perhaps, fifteen minutes, he thought, but was not certain as to the time. There they were sitting when he last saw them. There they were sitting when the locomotive struck them. May we not say, there they were yet sitting when it struck them? Had they ever moved? Counsel argues that we can not make this inference because the uncontradicted evidence of the engineer and fireman is that they were on the lookout, and did not see the children, and we can not draw inference against positive evidence. But the facts argue against this. The fireman had not looked for a fourth of a mile till he got within forty five or fifty feet, when he saw them. The engineer might have looked, but failed to see. The children might have been there nevertheless. He says the morning was foggy. If so, that would likely prevent his seeing; but discard that, as in conflict with several witnesses who say it was sunshiny and bright. The engineer says that the willows shaded the trestle. That might have prevented his seeing the children, and yet they be sitting there. But other evidence contradicts him as to the willows shading. Bear in mind that as yet we are confining ourselves to the question whether those children were on the trestle so as to be seen some time before the casualty, not upon the ques *684 tion whether the engineer did see them, or whether he used diligence and failed to see them. We therefore conclude that it is fair upon this evidence to say — at least not unfair or unreasonable to say — the children were on the trestle so as to be seen long enough before the train came, to he seen and saved, so far as distance is concerned.

But the defendant would still say that the evidence shows a careful lookout, and, if the children were there, they were not seen by this careful lookout, and that ordinary care is all that can be demanded, and, if it fails, the company is not responsible. They say the evidence showing this ordinary care to avoid calamity is uncontroverted, and we can not find in its face a want of ordinary care. We do not say they were seen and purposely hurt, but was there due care? Was there that care required by law? This is now our question, seeing that those children were upon the trestle, and the deadly train approached them. There was a curve in the road, and between the curve and the trestle a straight level track, with clear view for full half a mile; and the morning a clear bright morning of June, the time eight o’clock, the children (two of them) sitting ou a guard rail on a trestle, clearer to view, pei’haps, than if elsewhere on the track, and-the engine such as was capable of stopping the train in its own length, the fireman said, a witness for plaintiff, though the engineer, a witness for defendant, denied this. Now, it would be pretty lenient under these circumstances, so favorable for seeing and saving these children, and pretty dangerous as a rule, to say there was all due care. But here an important consideration enters into this question of the presence or absence of due care, and this that it is one of fact, proper for a jury; so, also, what was a fair inference from all the circumstances as to when the children were first on the trestle; so, also, the credibility of' witnesses as to seeing the children, and of watchfulness. A jury is to judge of the weight of evidence, and make inferences and deductions. Now, suppose there had been a verdict for the plaintiff. Could we set it aside? We do not think we could. Then the rule of decision upon a demurrer to evidence would require judgment upon it for the plaintiff. There is stronger reason for holding the com *685 pany for want of close lookout, and more opportunity to discover the chidren, than was the case with the mule in Heard v. Railroad Co., 26 W. Va. 455, and that was not on a demurrer to evidence, while this is.

The counsel of defendant seeks to relieve it from liability because of imputed negligence; that is, that the father and mother of these children allowed them to go about the track, and thus expose them to danger, and- as the father is sole distributee of his child, and will get the money recovered, the suit can not be maintained, as his negligence is imputed to the child. But we do not think that, if that doctrine be good law, a sufficient basis exists for its application. There was not that omission of ordinary care asper-sons of ordinary prudence deem adequate care with their children. O'Flaherty v. Railway Co., 100 Am. Dec. 343. The parents of these children seem to be poor, and there fore unable to employ a nurse to attend and guard their children — a fact bearing on the degree of care demandablé of them. Though living near the railroad, yet not so near (three hundred or four hundred yards) as to require such close constant watch. They warned their children against going on the rail road. They did know that they had on one or more occasions been on the track, and warned them against going there, and the father once whipped this little boy for doing so. The mother sent them that morning to turn the cows, up the road, and come back by the corn lot and garden — a different direction from the trestle, I understand. They could not peu or imprison their children from light and air and exercise and play. They could not always keep unfailing watch upon them. That degree of negligence is not shown which would warrant us in denying recovery on this ground. This renders it out of place to discuss the question of imputed negligence; that is, that, though no negligence could be charged to the child, yet, as the parent was negligent in exposing him to danger, that shall be imputed to the child, and made his negligence, and forbid recovery by merely the representative of the child. This doctrine began in the supreme court of New York in 1839, with Hartfield v. Roper, 21 Wend. 615, holding that where a child of tender years is in a highway unattended, *686 and is run over by a traveler, the traveler is not liable to even the child, unless the injury was voluntary or from culpable negligence, because the law attributed the negligence of the parents in allowing the child to be in a place of danger to the child, so as to prevent recovery by the child. Since that case the subject has undergone elaborate and refined discussion in the courts, and the conflict is intense. Some courts repudiate it; some adhere to it. It is said' to be now against the weight of authority. Virginia has repudiated it in Railroad Co. v. Ormsby, 27 Gratt. 455, and Railroad Co. v. Groseclose’s Adm’r, 88 Va. 267 (13 S. E. 454.) From the reading I have done, in an incomplete examination of this point, my individual opinion is that, where the child is living and suing, the negligence of the father can not be imputed to it to affect its action; but where the child is dead, and the father is, by law, sole distributee of the child, as he gets the recovery and is guilty of the negligence producing the accident, that will bar recovery, no matter who is administrator, unless the defendant’s act be willful or wanton. Of course, where the father sues for loss of his child’s service, his own negligence will bar him. See Beach, Contrib. Neg. § 42; 1 Shear. & R. Neg. § 74; Bish. Noncont. Law, § 352; 4 Am. & Eng. Enc. Law, 88; Wymore v. Mahaska Co. 78 Iowa, 396 (43 N. W. 264) citing the many conflicting cases. Casey v. Smith (Mass.) 25 N. E. 734; Westbrook v. Railroad Co. 66 Miss. 560 (6 South. 321); Railway Co. v. Vining, 92 Am. Dec. 269; Railroad Co. v. Snyder, 98 Am. Dec. 175, and note; note to Freer v. Cameron, 55 Am. Dec. 667; Ihl v. Railroad Co. 7 Am. Rep. 450; Grant v. City of Fitchburg (Mass.) 35 N. E. 84; Wiswell v. Doyle, Id. 107; Johnson v. Railway Co. (Pa. Sup.) 28 Atl. 1001.

Judgment reversed, and judgment for plaintiff on the demurrer to evidence.