FINN v. DELAWARE, L. & W. Railroad

The evidence upon the part of the plaintiff tends to prove that the defendant’s locomotive was passing through a narrow street, in a populous portion of the city, where children were in the habit of congregating in front of their homes, without giving any signal of its approach, and without taking any precaution whatever to avoid just such accidents as the one which occurred upon the occasion in question. This certainly was gross negligence, and it was so clearly established that no attempt was made upon the argument to deny it. On the contrary, the learned counsel for the defendant, virtually conceding the negligence of his client, took refuge in the contention that such negligence cannot be said to have caused the accident complained of, inasmuch as the plaintiff was, at the time it occurred, an infant of such tender years that she would not have heeded or appreciated the means ordinarily employed to warn people of impending danger, had such means been adopted in the present instance. This proposition, however, does not commend itself to us as one which can be successfully maintained, in view of the circumstances .surrounding the case. The plaintiff was a bright, intelligent child for one of her years, and she had occasionally been sent to the locality of the accident upon errands for her mother. She had seen engines frequently, as they passed along Water street, and presumably knew something of their dangerous character; and it is but fair to assume that, had her attention been directed to this particular engine, and to the fact that it was coming towards her at a comparatively rapid rate, by the ringing of a bell or the sounding of a whistle, she would have paid some heed to the warning, and have avoided the consequences which ensued. That such an assumption is not altogether unwarranted is made evident by the testimony of the witness Thomas Ryan, who tells us that he watched the little girl as she started across the street, and, when he discovered how imminent the danger was, he hallooed to her, and that she then turned, and, seeing the engine immediately upon her, became confused and excited, and, instead of stepping off the track at the east side thereof, turned around, with the apparent intention of retracing her steps, and was struck.

But the omission of the ordinary signals is not the only factor in the case which tends to establish negligence upon the part of the defendant. Under the circumstances, to which reference has already been made, the jury would have been at liberty to find, had the case been submitted to them, that the defendant was called upon to furnish

The case of Chrystal v. Railroad Co., 124 N. Y. 519 , 26 N. E. 1103 , cited by the learned counsel for the defendant in support of his contention, has no application to the facts here presented; for in that case the infant was a mere baby, about 17 months old, who had escaped from his mother, and, finding his way onto the railroad track by crawling under a gate, tottered along towards the rapidly approaching engine, clapping his hands with gleeful pleasure, unconscious of, and manifestly without the capacity to realize, the danger which threatened him.

It is insisted, however, that, even conceding the defendant’s negligence, the plaintiff ought not to recover by reason of her own contributory negligence; and it is at this point that we are brought into contact with the vital question in the case. That the locomotive which struck the plaintiff was in plain sight for at least 84 feet before it reached the point where the accident occurred is undisputed. That the plaintiff might have seen it, had she looked, and that she did not look, are facts too clearly established to admit of controversy; and it is equally clear that, had she been of sufficient age to enable the court to determine, as a matter of law, that she was sui juris, these facts would not only have justified, but they would have compelled, a nonsuit. The difficulty, however, which here presents itself, arises from the fact that the law finds it impossible to determine arbitrarily at what age an infant may be deemed capable of exercising that degree of judgment and discretion which shall make it responsible for its acts of commission or omission; and we know of no case where it has been held, as a proposition of law, that a child six years of age was chargeable with negligence.

In the case of Wendell v. Railroad Co., 91 N. Y. 420 , it was held that a lad seven years old was, under the peculiar circumstances of the case, capable of appreciating, and that he did appreciate, the peril of the situation which confronted him; and, because the evidence placed it beyond doubt that he recklessly encountered the peril, it was further held that a recovery could not be had. But in a more recent decision, in which that case was considered and commented upon, it was said that the trial court had labored under a misapprehension “in supposing that it [the Wendell Case] decided, as a proposition of law, that a child of seven years was capable of exercising judgment, so as to be chargeable with contributory negligence.” Stone v. Railroad Co., 115 N. Y. 104 -110, 21 N. E. 712 . And more recently still this court has held, under circumstances quite similar to those here present, save that the accident was caused by a car propelled by electricity, instead of by a locomotive, that whether or not

We have said that the circumstances of the two cases are quite parallel, and such is, indeed, the fact; but, if there are any distinguishing features, we think they will be found to favor the plaintiff’s, contention in this case, the simple undisputed facts of which may be thus epitomized: A child six years of age approaches a railroad track upon which a locomotive is coming towards her. Unconscious of the danger which menaces her, and intent only upon joining her playmates upon the opposite side of the street, she proceeds to cross the defendant’s track, with her back towards the locomotive, which, although in plain sight, is giving no signal of its approach, and moving along so quietly that several witnesses of the accident testified that they did not hear it. When upon the track the child’s attention is called by a bystander to the danger which threatens her, but too late to enable her to avoid it, and she is struck. Under these circumstances, can it be said, as a matter of law, that she was guilty of contributory negligence? We are not unmindful of the rule which requires even infants to approach a known danger with some degree of care and prudence, but the measure of care required in such cases is largely dependent upon the age of the child, its intelligence, and the circumstances under which the danger is approached. In view of the facts disclosed in the foregoing recital, and of the authorities to which reference has been made, and especially in view of the conceded negligence of the defendant, we feel constrained to answer the question just propounded in the negative, and, consequently, to sustain the conclusion finally reached by the trial court, that the case presents questions of fact which should have been submitted to the jury.

Order affirmed, with costs. All concur.