Ray, J.
The appellee filed his complaint as follows, in-the Allen Circuit Court: “ The plaintiff, as administrator of Alexander Vining, deceased, complains of said defendant and says, that on the 3d day of July, 1863, the said Alexander Vining, then being an infant of seven years of age, and without the fault or neglect of his parents, with whom, he then resided, was casually upon the railway track of the defendant, at a public crossing or highway over said track, in Allen county, Indiana; that said defendant was then running a locomotive and train of ears over and along said track, and tho plaintiff avers, that while said Alexander was upon said track, at said public crossing as aforesaid, he could [514] be distinguished by the agents and servants of said defendant, then running said locomotive and train, for a distance of more than half a mile from said crossing, within which distance said locomotive and train could have been stopped, yet the defendant wrongfully, negligently and carelessly, without giving any warning, or in any way attempting to stop said train, and while said child might have been, and was, seen by the defendant’s servants then running said locomotive and train, ran the said locomotive and train against and over the said child, and thereby so injured and maimed said child that it died thereof,” &c.'
The appellant demurred to the complaint on the grounds,first, that it did not state facts sufficient to constitute a cause of action; second, that the plaintiff had not the legal capacity to sue as administrator of an infant; and, third, that there was a defect of parties plaintiff in this, that the right ■of action was in Vining, the father of the infant, and not in the administrator. It is objected that the complaint does not aver that the child was not guilty of negligence. It does -■aver that he was on the track without the fault or negligence ^•of his parents, with whom he resided. If a child of that ■ tender -age were wrongfully upon the track, so as to fasten ■ -the charge of negligence upon either the child or the parents,while, as a question of fact, the neglect would be that of the parents, the law- would impute it to the child. Where an infant of tender years is unnecessarily exposed to danger which it has -not the judgment to avoid, the neglect must, •in fact, be the omission of the person having the child in .custody, in thus exposing it. We think, therefore, that the allegation being matter of fact, and not. of law, it was proper that the averment should be made as to the custodians of the child, rather than as to the infant itself. This position seems to us to be fully sustained by the authorities.
In the case of Holly v. The Boston Gaslight Co., 8 Gray 123, an action was brought by an infant of nine years of .age, by her father and next friend, for personal injury occasioned to her by-the escape of gas, while she was of right [515] in her father’s dwelling house. Upon the question of negligence, this language occui’S in the opinion of the court: “isTor does it make any diffex’ence that the plaintiff is a minor. She was under the care of her father, who had the custody of her person, and was responsible for her safety. It was his duty to watch over hex’, guard her from danger, and px’ovide for her welfax’e, and it was hex-s to submit to •his government and control. She was entitled to the benefit of his supei’intendence and protection, and was consequently subject to any disadvantages resulting from the exercise of that parental authoxúty which it was both his xight and duty to exert. Any waxit of ox’dinary care, therefore, on his part, is attributable to hex’, in the same degree as if she were acting wholly for hex’self.” The same ruling was made in Wright v. The Malden and Melrose R. R. Co., 4 Allen 283.
The rule that' the plaintiff" is xxot required to show any higher degree of care on his pax’t than could reasonably be expected from such a person, announced iix Lynch v. Nurdin, 1 Q. B. 29, and which was questioned in Lygo v. New-bold, 9 Exch. 302, does not seem to be followed in the later cases in England. Waite v. The North Eastern Railway Co., 96 Eng. Com. L. 719; Singleton v. The Eastern Counties Railway Co., 97 Eng. Com. L. 287. In the case of Hughes v. Macfie, 2 Hurls. & Colt. 744, it appeai’ed that there was a public street in Liverpool, over the whole of which, from fence to foxice, the public had the right of way, subject to the existence of certain cellars. On one side of the stx’eet was a foot path, on the other side no foot path, but the cellax’s alluded to, which made that side less commodious as a way. Still the public had the right to pass there. The defendant, who was the oecxxpant of a house and cellar on this latter side, took off the flop, or covex’, of his cellar and placed it against the wall on the same side, nearly upxight, so that it could easily be pulled ovex\ Hughes, the plaintiff’, a child of five years of age, by playing oxi it and jumping from it, pulled it over on him and was hurt severely. The court say: “ Had he been an adult, it is clear he could have main[516] tainecl no action. He would have voluntarily meddled, for no lawful purpose, with that which, if left alone, could not have' hurt him. He would therefore, at all events, have contributed by his own negligence to his damage. We think the fact of the plaintiff being of tender years makes no difference:” ' In the late case of Mangan v. Atterton, Law R. Ex. Vol. 1, 239, where the defendant exposed in a public place for sale, unfenced and without superintendence, .a machine which might be set in motion by any passer by, and which was dangerous when in motion, the plaintiff*, a boy four years old, by the direction of his brother, seven years old, placed his fingers within the machine, -while another boy was turning the handle which moved it, and his fingers were crushed. It was held that the plaintiff could not maintain any action for the injury. Bramwell, B., said: “The defendant is no more liable than, if. he'had exposed goods colored with a poisonous paint, and the child had sucked them. It may seem a harsh way of putting it, but suppose this machine had been of a very delicate construction, and had been injured by the child’s fingers, would not the child, in spite of his tender years, have been liable to an action as a tortfeasor?”
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Ray, J.
The appellee filed his complaint as follows, in-the Allen Circuit Court: “ The plaintiff, as administrator of Alexander Vining, deceased, complains of said defendant and says, that on the 3d day of July, 1863, the said Alexander Vining, then being an infant of seven years of age, and without the fault or neglect of his parents, with whom, he then resided, was casually upon the railway track of the defendant, at a public crossing or highway over said track, in Allen county, Indiana; that said defendant was then running a locomotive and train of ears over and along said track, and tho plaintiff avers, that while said Alexander was upon said track, at said public crossing as aforesaid, he could [514] be distinguished by the agents and servants of said defendant, then running said locomotive and train, for a distance of more than half a mile from said crossing, within which distance said locomotive and train could have been stopped, yet the defendant wrongfully, negligently and carelessly, without giving any warning, or in any way attempting to stop said train, and while said child might have been, and was, seen by the defendant’s servants then running said locomotive and train, ran the said locomotive and train against and over the said child, and thereby so injured and maimed said child that it died thereof,” &c.'
The appellant demurred to the complaint on the grounds,first, that it did not state facts sufficient to constitute a cause of action; second, that the plaintiff had not the legal capacity to sue as administrator of an infant; and, third, that there was a defect of parties plaintiff in this, that the right ■of action was in Vining, the father of the infant, and not in the administrator. It is objected that the complaint does not aver that the child was not guilty of negligence. It does -■aver that he was on the track without the fault or negligence ^•of his parents, with whom he resided. If a child of that ■ tender -age were wrongfully upon the track, so as to fasten ■ -the charge of negligence upon either the child or the parents,while, as a question of fact, the neglect would be that of the parents, the law- would impute it to the child. Where an infant of tender years is unnecessarily exposed to danger which it has -not the judgment to avoid, the neglect must, •in fact, be the omission of the person having the child in .custody, in thus exposing it. We think, therefore, that the allegation being matter of fact, and not. of law, it was proper that the averment should be made as to the custodians of the child, rather than as to the infant itself. This position seems to us to be fully sustained by the authorities.
In the case of Holly v. The Boston Gaslight Co., 8 Gray 123, an action was brought by an infant of nine years of .age, by her father and next friend, for personal injury occasioned to her by-the escape of gas, while she was of right [515] in her father’s dwelling house. Upon the question of negligence, this language occui’S in the opinion of the court: “isTor does it make any diffex’ence that the plaintiff is a minor. She was under the care of her father, who had the custody of her person, and was responsible for her safety. It was his duty to watch over hex’, guard her from danger, and px’ovide for her welfax’e, and it was hex-s to submit to •his government and control. She was entitled to the benefit of his supei’intendence and protection, and was consequently subject to any disadvantages resulting from the exercise of that parental authoxúty which it was both his xight and duty to exert. Any waxit of ox’dinary care, therefore, on his part, is attributable to hex’, in the same degree as if she were acting wholly for hex’self.” The same ruling was made in Wright v. The Malden and Melrose R. R. Co., 4 Allen 283.
The rule that' the plaintiff" is xxot required to show any higher degree of care on his pax’t than could reasonably be expected from such a person, announced iix Lynch v. Nurdin, 1 Q. B. 29, and which was questioned in Lygo v. New-bold, 9 Exch. 302, does not seem to be followed in the later cases in England. Waite v. The North Eastern Railway Co., 96 Eng. Com. L. 719; Singleton v. The Eastern Counties Railway Co., 97 Eng. Com. L. 287. In the case of Hughes v. Macfie, 2 Hurls. & Colt. 744, it appeai’ed that there was a public street in Liverpool, over the whole of which, from fence to foxice, the public had the right of way, subject to the existence of certain cellars. On one side of the stx’eet was a foot path, on the other side no foot path, but the cellax’s alluded to, which made that side less commodious as a way. Still the public had the right to pass there. The defendant, who was the oecxxpant of a house and cellar on this latter side, took off the flop, or covex’, of his cellar and placed it against the wall on the same side, nearly upxight, so that it could easily be pulled ovex\ Hughes, the plaintiff’, a child of five years of age, by playing oxi it and jumping from it, pulled it over on him and was hurt severely. The court say: “ Had he been an adult, it is clear he could have main[516] tainecl no action. He would have voluntarily meddled, for no lawful purpose, with that which, if left alone, could not have' hurt him. He would therefore, at all events, have contributed by his own negligence to his damage. We think the fact of the plaintiff being of tender years makes no difference:” ' In the late case of Mangan v. Atterton, Law R. Ex. Vol. 1, 239, where the defendant exposed in a public place for sale, unfenced and without superintendence, .a machine which might be set in motion by any passer by, and which was dangerous when in motion, the plaintiff*, a boy four years old, by the direction of his brother, seven years old, placed his fingers within the machine, -while another boy was turning the handle which moved it, and his fingers were crushed. It was held that the plaintiff could not maintain any action for the injury. Bramwell, B., said: “The defendant is no more liable than, if. he'had exposed goods colored with a poisonous paint, and the child had sucked them. It may seem a harsh way of putting it, but suppose this machine had been of a very delicate construction, and had been injured by the child’s fingers, would not the child, in spite of his tender years, have been liable to an action as a tortfeasor?”
The doctrine of Lynch v. Nurdin, supra, has been followed to some extent, however, by the courts of Connecticut, Vermont and Pennsylvania. In New York, however, the same rule is recognized as in Massachusetts. In Hartfield v. Paper, et al., 21 Wend. 615, it was held “that although the child, by reason of his tender age, be incapable of using that ordinary care which is required of a discreet and prurient person, the want of such care on the part of the parents .and guardians of the child furnishes .the same answer to an action by the child, as would its omission on the part of the plaintiff in an action by an adult.” It seems to us ^liat the unnecessary exposure to known danger of a child incapable of exercising the- care and judgment of mature years, is in itself an act of negligence on the part of the parent sufficient to defeat a recovery, unless the injury be [517] willful. The demurrer assigning for cause the insufficiency of the facts stated in the complaint was, we think, properly overruled, the complaint expressly denying such neglect.
The next question is as to the right of action, whether it. is given by statute to the parent or to the administrator. This question was decided by this court in the case of the Ohio,&c., R. R. Co.v. Tindall, 13 Ind. 366, where it was held that section 27, 2 G. & H. p. 56, confined the right of action to the parent, where the injury occurred to a minor, and that section 784, id., p. 330, authorized the action by the administrator in case of an adult. As in this case the right of action did not exist at common law, but is of special statutory origin, and as the purpose of the statute can be accomplished by the construction adopted, we are not disposed to hold that in case of the death of an infant one right of action may exist in the parent, and another in the administrator. The danger that in both actions the recovery would be, in point of fact, for the same damage, is sufficient to deter the court from placing such a construction upon the statute, unless the intent of the legislature to confer such a right 'more clearly appeared. The demurrer for this' cause should have been sustained. As this ruling results in a reversal of the case, we deem it better not to anticipate the action of any subsequent jury, in a suit properly brought, by an examination of the sufficiency of the evidence introduced on the trial below.
The judgment is reversed, with costs.