Barstow v. Capital Traction Co.

29 App. D.C. 362, 1907 U.S. App. LEXIS 5461

• Court: District of Columbia Court of Appeals
• Decided: April 2, 1907
• Docket: No. 1683
• Status: Published

Opinion

Mr. Justice Robb

delivered the opinion of the Court:

It has many times been ruled that it is the duty of the trial court to direct a verdict when the evidence introduced at the trial, with all the inferences that the jury may justifiably draw therefrom is insufficient to support a verdict; but “where the sufficiency of the evidence to establish a necessary fact is fairly a question of doubt, it is the province of the jury to pass upon it, with proper instructions by the court as to the law of the particular case made by the evidence. The jury are the judges of the credibility of the witnesses and the weight of their testimony, and it is only where all reasonable men can draw but one inference from the undisputed facts that the question to be determined is one of law for the court.” Jennings v. Philadelphia B. & W. R. Co. App. D. C., present term, [ante, 219]. In the light of this general statement of the rule, let us briefly review the circumstances surrounding the parties at the time of the injury complained of, and the evidence upon which the plaintiff bases his right of recovery. It is undisputed that this boy was but nine years old at tbe time of tbe accident; that he was walking along a public avenue or highway, as he had a legal right to do; that the defendant’s tracks occupied the center of that avenue, the roadway being on either side, and, of course, close to the tracks; that the defendant’s motorman saw both the boy and his sister before he reached them, and that shortly thereafter the car ran over the boy’s left foot and crippled him for life. All this is conceded. Paul testified that his attention was first arrested and drawn to the car by the act of the motorman in addressing him by name and saying something else which he did not understand. The motorman denied “calling” him, that is, inviting him to run towards the car, but finally admitted in his .direct examination that “when he (the motorman) spoke to him he may have said 'Good evening, Paul/ or 'Hello, Paul/ or something of the kind.” This strongly corroborates the boy’s testimony, and, when we consider the admitted speed of the car and the position of the boy, it becomes apparent that the boy’s statement that the motorman saw him as he started to run towards and alongside the car is far from unreasonable, because, had the boy delayed starting, he could not have overtaken the car at all. The boy states positively that the motorman not only saw him when he .started towards the car, but that the motorman continued talking to him and looking at him, and that he continued to look at the motorman until he stumbled and fell and was injured. The little girl, who, as the car approached, appears to have been interested in some cows just over the fence, testified without objection that the motorman did speak to Paul, and that she “asked Paul what he said,” and that thereupon Paul started towards the car. It will be noted that the motorman finally admitted that he “may have turned his head and looked,” and that he did not say he had his hands on either the controller or the brake-staff. It will also be observed that the motorman himself said he saw the injured child without leaving his car, .as the child stood beside the track “balancing himself on one foot.”

If the testimony of these children is true, and it is not for us to say it is not, we think it is for the jury to determine, after receiving proper instructions from the court, whether a man of ordinary prudence and caution, situated as this motorman was situated, should have known, or should have had reason to know, that a child no older than this boy, running as fast as he could run close to and alongside a car, and over a more or less uneven surface, and with eyes on the motorman, was in a position of imminent danger, and whether, under all the circumstances, ordinary prudence and caution instantly required him to do what he could to warn the child of its danger, and to instantly attempt to arrest the motion of his car.

Whilst the act of the learned judge in taking the case from the jury after having previously submitted it to them in the manner heretofore mentioned was a courageous act, we are forced to conclude that it was not within the province of the court to determine, as matter of law, under the facts disclosed by the record, “that there is no evidence sufficient to warrant a finding by the jury that the motorman did know that this boy was in a place of danger, in fact, had any knowledge of his proximity to the car until the accident had happened.” The Supreme Court of the United States has recently said, in McDermott v. Severe, 202 U. S. 600, 604, 50 L. ed. 1162, 1166, 26 Sup. Ct. Rep. 709, that “negligence only becomes a question of law to be taken from the jury when the facts are such that fairminded men can only draw from them the inference that there was no negligence. If fairminded men, from the facts admitted, or conflicting testimony, may honestly draw different conclusions as to the negligence charged, the question is not one of law, but of fact, and to be settled by the jury under proper instructions. Richmond & D. R. Co. v. Powers, 149 U. S. 43, 37 L. ed. 642, 13 Sup. Ct. Rep. 748; Northern P. R. Co. v. Everett, 152 U. S. 107, 38 L. ed. 373, 14 Sup. Ct. Rep. 474.” That twelve fair-minded men did “honestly draw different conclusions as to the negligence charged” in the present case is obvious from the fact that they failed to agree after having considered the evidence over night and under a charge which, as a whole, was distinctly favorable to the defendant. The jury system is the law of the land, and disputed questions of fact arising out of the manifold relations of men are not to be determined by tbe court as matter of law, but are to be submitted to tbe jury,- — the tribunal whose special function it is to pass upon such questions. The wisdom of this system, and the danger encountered in departing from it, are every day apparent. It is a protection to the weak and to the strong alike, and, as long as it maintains, respect for the law will continue, because the verdict of the jury is usually the reflection of public sentiment. Experience has demonstrated that, however learned in the law he may be and however conscientious he may be, a judge, being removed from the practical affairs of life, is less qualified to determine questions of fact than twelve men taken from the every-day walks of life. So we say that, while this case is a close one, depending largely upon the view taken of the evidence, it is nevertheless a proper one for the jury.

The law requires a very high degree of care on the part of this defendant. It is permitted to occupy the streets and avenues of the District with its tracks and cars, to its own profit and advantage. This franchise, granted primarily in the-interests of the public, carries with it, and should carry with it, corresponding responsibilities, among which is the responsibility of operating its road with due regard to the safety of the entire public. It is manifest that a much higher degree of care is required towards a child, who owing, to his immature years, is incapable of realizing and appreciating the proximity of danger and the necessity of care and caution to avoid injury, than is required towards grown men and women, whose knowledge, experience, and mature years better enable them to look out for themselves.

And this brings us to the contention that, aside from the question of whether the defendant was negligent, the plaintiff cannot recover, because the evidence shows he was sui juris and guilty of such contributory negligence as to defeat his right of recovery.

“It is well settled that, where there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law, but of fact, and to be settled by a jury; and this, whether the uncertainty arises from a conflict in the testimony, or because, the facts being undisputed, fair-minded men will honestly draw different conclusions from them.” Richmond & D. R. Co. v. Powers, supra. This is the rule as to adults, and it applies with greater force to children. Indeed, we had supposed it settled doctrine in this jurisdiction that the question whether a child of tender years has exercised such care as would reasonably be expected from a person of his age and capacity is a question for the jury, and to be determined by the circumstances of the particular case. In view, however, of the above contention of the learned counsel for appellee, which was earnestly and ably pressed in the arguments at bar and exhaustively treated in their brief, we will again review some of the cases which we deem most applicable.

The case of Lynch v. Nurdin, 1 Q. B. 29, has been many times cited by the Supreme Court of the United States and relied upon by other courts as a leading case upon this subject. In that case the defendant’s carman went into a house, and left his horse and cart unattended in the street for a period of half an hour. The plaintiff, a boy about seven years of age, with other children, took advantage of the carman’s absence to play about the vehicle. The plaintiff got upon the cart, and as he was in the act of getting off another boy started the horse, causing the plaintiff to fall and the wheel to run over him and break his leg. The court was asked to rule that the plaintiff could not recover because of his own negligence. This request the court refused, and submitted to the jury the question of whether the defendant was guilty of negligence, and, if so, whether the negligence caused the accident. On appeal before the Queen’s bench, Lord Den-man, in referring to the contention that plaintiff was guilty of contributory negligence, said: “The legal proposition that one who by his own negligence contributed to the injury of which he complains cannot maintain his action against another in respect of it has received some qualifications. Indeed, Lord Ellenborough’s doctrine in Butterfield v. Forrester, 11 East, 60, which has been generally adopted since, would not set up the want of a superior degree of skill or care as a bar to the claim of redress. Ordinary care must mean that degree of care which may reasonably be expected from a person in the plaintiff’s situation; and this would evidently be very small indeed in so young a child. But this case presents more than the want of care; we find in it the positive misconduct of the plaintiff an active instrument towards the effect. * * * But the question remains, Can the plaintiff, consistently with the authorities, maintain his action, having been at least equally in fault ? The answer is that, supposing that fact ascertained by the jury, but to this extent, that he merely indulged the natural instinct of a child in amusing himself with the empty cart and deserted horse, then we think that the defendant cannot be permitted to avail himself of that fact. The most blamable carelessness of his servant having tempted the child, he ought not to .reproach the child with yielding to that temptation. He has been the real and only cause of the mischief. He has been deficient in ordinary care; the child, acting without prudence or thought, has, however, shown these qualities in as great a degree as he could be expected to possess them. His misconduct bears no proportion to that of the defendant which produced it.”

In Washington & G. R. Co. v. Gladmon, 15 Wall. 401, 21 L. ed. 114, the plaintiff, a boy of seven years old, attempted to run across the tracks in front of a moving horse car in the District of Columbia. Before he got across he turned suddenly to run back, and in some unexplained manner was severely injured by the horses or car. There was evidence that the driver of the horse car was talking to a person who was standing beside him, and not looking at his horses or the track ahead. It was contended that the child was guilty of contributory negligence, and therefore could not recover. This contention was not sustained by the trial court, and the jury was permitted to judge the child’s conduct according to the measure of his years and discretion. The Supreme Court, in sustaining the trial court, said: “The rule of law in regard to the negligence of an adult, and the. rule in regard to that of an infant of tender years, is quite different. By the adult there must be given that care and attention for his" own protection that is ordinarily exercised by persons of intelligence and discretion. If he fails to give it, his injury is the result of his own folly, and cannot be visited upon another. 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 trial court was also requested to charge the jury in that case that, if they found the plaintiff had negligently or rashly attempted to cross the street in front of the car, and that “his injuries resulted from his having accidentally slipped and fallen on or near the track when endeavoring to turn back when it was too late to stop the car, it is to be regarded as an inevitable accident, for the consequences of which the defendant is not responsible.” This request was refused, and the Supreme Court disposed of it in these words: “The suggestions already made are applicable to this request. The circumstances that the plaintiff was an infant of tender years, and that a different rule was required in that case from the rule in the case of an adult, was excluded from the proposition. A charge in accordance with the prayer could not, therefore, have been properly made.”

Another case in which the rule is clearly announced is that of Sioux City & P. R. Co. v. Stout, 17 Wall. 657, 21 L. ed. 745. In that case the plaintiff, a boy six years of age, was seeking to recover damages for an injury received by him while upon the premises of the defendant from mere curiosity or amusement, The plaintiff with other boys went to the company’s depot, and then proceeded over the tracks of the defendant to its turntable, about a quarter of a mile distant. They found the turntable unguarded and not fastened or locked. Two of the boys commenced to revolve it on its axis, and the plaintiff’s foot, as he was attempting to get upon the turntable, was caught and badly crushed. The court, through Mr. Justice Hunt, said: “It is well settled that the conduct of an infant of tender years is not to be judged by the same rule which governs that of an adult. While it is the general rule in regard to an adult that, to entitle him to recover damages for an injury resulting from the fault or negligence of another, he must himself have been free from fault, such is not the rule in regard to an infant of tender years. The care and caution required of a child is according to his maturity and capacity only, and this is to be determined in each case by the circumstances of that case.” In discussing the degree of care required of the defendant the court observed that, if the jury might justly infer from the evidence that the defendant in the construction, location, management, or condition of its machine has omitted that care and attention to prevent accidents which prudent and careful men ordinarily bestow, they were at liberty to find for the plaintiff. The court further said: “That the turntable was a dangerous machine, which would be likely to cause injury to children who resorted to it, might fairly be inferred from the injury which actually occurred to the plaintiff. There was the same liability to injury to him, and no greater, that existed with reference to all children. When the jury learned from the evidence that he had suffered a serious injury by his foot being caught between the fixed rail of the roadbed and the turning rail of the table, they were justified in believing that there was a probability of the occurrence of such accidents.”

Following the rule announced in the foregoing cases, this court in Baltimore & P. R. Co. v. Webster, 6 App. D. C. 182, through Mr. Chief Justice Alvey, said: “With respect to the question of contributory negligence of the plaintiff, that was also properly submitted to the jury. As matter of defense, it was inciunbent upon the defendant to establish such contributory negligence, unless shown in the proof produced by the plaintiff. The plaintiff, at the time of the injury received, being a boy under twelve years of age, as shown by the proof, could not be expected to exercise the same degree of care and caution to avoid danger to himself as would be exacted of an older or an adult person under like circumstances. The question in all such cases is whether the child has exercised such care as was reasonably to be expected from a person of his age and capacity; and the mere fact that he was old enough to know the probable consequences of the act which caused his injury will not conclusively determine that he was negligent in a degree to defeat his right to recover, since it is not to be expected that a child will exercise the measure of prudence or caution in avoiding danger that we expect of an adult. Washington & G. R. Co. v. Gladmon, supra; Sioux City & P. R. Co. v. Stout, 17 Wall. 657, 660, 21 L. ed. 745, 748; Plumley v. Birge, 124 Mass. 57, 26 Am. Rep. 645.”

In the Webster Case the infant plaintiff, it will be seen, was about twelve years of age at the time he received the injury forming the basis of his action. There was evidence that he was accustomed to trains and the tracks at the place where he was injured, and that he was negligent in failing to observe the train which injured him, and also that he had been known to indulge “in stealing rides.”

The rule laid down in the Webster Case was reiterated in Baltimore & P. R. Co. v. Cumberland, 12 App. D. C. 598. The plaintiff in that case was more than twelve years old at the time he was injured. The decision of this court was sustained on appeal by the Supreme Court of the United States in 176 U. S. 232, 44 L. ed. 447, 20 Sup. Ct. Rep. 380.

Also see Illinois C. R. Co. v. Jones, 37 C. C. A. 106, 95 Fed. 370; Cook v. Houston Direct Nav. Co. 76 Tex. 353, 18 Am. St. Rep. 52, 13 S. W. 475; Wynn v. City & Suburban R. Co. 91 Ga. 344, 17 S. E. 649; Consolidated Traction Co. v. Scott, 58 N. J. L. 682, 33 L.R.A. 122, 55 Am. St. Rep. 620, 34 Atl. 1094; Price v. Atchison Water Co. 58 Kan. 551, 62 Am. St. Rep. 625, 50 Pac. 450; Costello v. Third Ave. R. Co. 161 N. Y. 317, 55 N. E. 897.

The following, taken from the opinion of the Supreme Court at the United States in McDermott v. Severe, 202 U. S. 600, 609, 50 L. ed. 1162, 1168, 26 Sup. Ct. Rep. 709, is peculiarly applicable here, for we all know how prone the average nine-year-old boy is to race with anything that moves: “This court in Union P. R. Co. v. McDonald, 152 U. S. 262, 277, 38 L. ed. 434, 441, 14 Sup. Ct. Rep. 619, quoted approvingly from Judge Cooley in a Michigan case: 'Children, wherever they go, must be expected to act upon childish instincts and impulses; and others who are chargeable with a duty of care and caution towards them must calculate upon this, and take precautions accordingly.’ This view is supported by other well-considered cases. Powers v. Harlow, 53 Mich. 507, 514, 51 Am. Rep. 154, 19 N. W. 257; Camden Interstate R. Co. v. Broom, 71 C. C. A. 641, 139 Fed. 595; Forrestal v. Milwaukee Electric R. & Light Co. 119 Wis. 495, 97 N. W. 182; Strutzel v. St. Paul City R. Co. 47 Minn. 543, 50 N. W. 690; Gray v. St. Paul City R. Co. 87 Minn. 280, 91 N. W. 1106.”

In view of these authorities, we think it would be error to rule, as matter of law, that the plaintiff under the circumstances of this case was guilty of such contributory negligence as to bar his right of action. Moreover, the argument that he was defeats itself, because the negligence of this child in running alongside the car in the manner he did, as was said in Lynch v. Nurdin, 1 Q. B. 29, bears no proportion to the negligence of the motorman, if he saw the child and failed either to warn him or to stop the car. An electric car may reasonably be considered a dangerous machine if left standing upon the track, since it requires no special skill or knowledge to start it. Under the authority of the Turntable Case, had the car in question been left standing upon the track, and this boy and other boys had come along, and, out of childish curiosity, started it up, and in consequence received injury, they would have had a right of action against the company. Surely, in such a case as this, -where the boy, according to his testimony, was not a trespasser, and where the car was in direct charge of the company’s servant, and where, under one view of the evidence, the accident might have been prevented' had the servant acted with prudence and promptness, it is for a jury to say whether a recovery may be had. It can be of no consequence that the child was running alongside, instead of in front, of the car, if the motorman saw him, and, as a reasonable and prudent man, had reason to believe him to be in peril; and, assuming the child’s testimony to be true, the very fact of his injury, as was said by Mr. Justice Hunt in the Turntable Case, would justify the jury in believing that there was a probability of the occurrence of such an accident.

The judgment must therefore be reversed, with costs, and the cause remanded, with directions to grant a new trial, and it is so ordered. Reversed.