Opinion
04-27-1876
NORFOLK & PETERSBURG R. R. CO. v. ORMSBY.
Goode & Chaplain, for the appellant, and by Scarburgh, Duffield & Sharp, for the appellee.
1. The terms negligence and ordinary care are correlative terms. Ordinary care depends on the circumstances of the particular case, and is such care as a person of ordinary prudence under the circumstances would have exercised.
2. A railroad company running its cars through a populous street of a city, on which many children live, must omit nothing which can be done by the company and its agents to prevent injury to children on the street.
3. A child two years and ten months old cannot be capable of contributory negligence, so as to relieve a railroad company from liability for its own negligence.
4. Negligence of the parent or guardian of an infant child injured by a railroad car, cannot constitute contributory negligence on the part of the child, so as to exonerate the company. Lynch v. Nurden, 41 Eng. C. L. R. 422, approved; Hatfield v. Roper, 21 Wend. R. 615, disapproved.
5. In an action for injuries involving the loss of an arm, plaintiff may introduce evidence to show what must be the effect of his injuries in disqualifying him from pursuits requiring two hands.
This was an action of trespass on the case in the corporation court of Norfolk, brought in December 1869, by Charles Ormsby, an infant, by his next friend, against the Norfolk and Petersburg Railroad Company. The declaration set out:
For that whereas the defendants before and at the time of the committing of the grievances hereinafter mentioned, to-wit, on the 30th day of August, in the year 1869, were the owners of a certain railroad, to-wit, of a railroad from the said city of Norfolk, which connects with the Southside railroad, at or near the city of Petersburg, and of a certain engine and cars, then under the care and management of certain servants of the said defendants; nevertheless the said defendants, by their said servants, so carelessly, negligently and improperly behaved and conducted themselves in and about the management, control, and direction of the said engine and cars, that the same, by and through the default, carelessness, negligence, and improper conduct of the said servants of the said defendants, then with great force and violence were driven and struck against the said plaintiff, by means whereof the right arm of the plaintiff was so fractured and injured that it became necessary to amputate the same, and the said arm was thereupon amputated, and he was otherwise greatly wounded, bruised, and injured, and so remained for a long space of time; and also by means of the premises the plaintiff was so maimed as to be disabled for the remainder of his life. To the damage of the said plaintiff of $30,000.
The issue was made up on the plea of " not guilty; " and the cause came on to be tried at the May term of the court 1872, when the jury found a verdict in favor of the plaintiff, and assessed his damages at $8,000. The defendant thereupon moved the court to set aside the verdict and grant it a new trial, on the ground that the verdict was contrary to the law and the evidence. But the court overruled the motion, and rendred judgment according to the verdict. To this opinion of the court the defendant excepted; and the court certified the following as the facts proved upon the trial.
That on the morning of the last day of August, 1869, between the hours of nine and ten o'clock, the agents of the defendant carried two flat cars loaded with lumber, from its depot in the city of Norfolk down its track on Widewater street, in the said city, and left them in front of McCullough's lumber-yard, on said street, to be unloaded, and one other flat car loaded with lumber, further down the said street, and left the same in front of Murdock Howell's lumberyard on said street, to be unloaded; that the said flat cars remained at the places at which they were respectively left, until between four and five o'clock in the afternoon of that day, when the said agents of the defendant left the said depot with a locomotive and five box cars in front of it, loaded with freight for the Boston steamer, the purpose being to carry the said box cars down Widewater street to Town Point, near the foot of said street, to be unloaded and to gather up and carry back to the depot the three flat cars that had been left on said street loaded with lumber during the forenoon. When the said locomotive and box cars reached McCullough's lumber-yard, the two flat cars left there in the morning having been unloaded, were coupled on the said train, the said agents with the locomotive, five box cars and two flat cars, then proceeded on in the direction of Murdock Howell's lumber yard, on said street, for the purpose of coupling on to the flat car left at that point in the forenoon, to be unloaded. That on the said train when it left the depot, there were G. W. Alsop, the engineer; a fireman, whose name was not given; J. T. Roberts, the yard master; James Pierce, switchman, and a colored train hand named Smith Vass. That the said J. T. Roberts was stationed on a brake-wheel two feet above the top of the fifth box car, being the next one to the flats, and the said Pierce and the said Vass were stationed on the foremost flat car, after they were coupled on at McCullough's lumber yard. That while the train moved from the depot down Widewater street, the bell on the engine was rung continually by the fireman, until the train reached Market Square, a point on the said track between the depot and Howell's lumber-yard, and at that point the fireman left the train, by the permission of the engineer; and from that point by the engineer until the train reached the flat car at Howell's lumber yard. That when the said front of the said train reached the United engine house, situated on said street, at a point about two hundred and twenty feet from the flat car in front of Murdock Howell's lumber-yard, it was moving at a rate of speed between two and three miles an hour. That about that point a signal was given to the engineer by the yard master, Roberts, to slacken the speed of the train in order to couple on to the flat car in front of Howell's lumber yard, which signal was heard and obeyed by the engineer. That at the time the moving train came in contact with the stationary flat car, the engine was running with steam from the boiler shut off, and was propelled solely by the steam in the dry pipe, the train was moving very slowly; the engineer on the train used all the appliances known to his business, to make the train move as slow as possible in order to couple. It is not possible to move a train slower than one mile per hour, it is very difficult to move at all at this rate; ordinarily, when using every appliance, the rate is one and one-half miles per hour; that during the whole time that the said train was moving from the depot westward, to collect the flats left on the track in the forenoon, the engine bell was rung, a man was on the top of one of the box cars, and two men on the flat car at the extremity of the train, by way of lookout, to give signals to the engineer in charge of the engine; that the man on the box car blew a whistle as he deemed necessary, and that these were the precautions usual and customary when the defendant was moving a train on said street. That the said James Pierce and Smith Vass, who were stationed on the front flat car attached to the moving train, and whose business it was to couple the stationary flat car to the moving train, attempted to effect the said coupling, but failed to do so, because the coupling pin which was left on the stationary car in the forenoon had by some means been removed during the day. That the said Pierce, when the moving train was within two cars of, or seventy-five or eighty feet of the stationary flat car, discovered that the coupling pin had been removed, and jumped from the flat car on which he was standing, and ran back to the engine for the purpose of getting another. That it had been customary to leave the coupling pins on the freight cars, which were detached and left on the track to be loaded or unloaded. That in Portsmouth the coupling pins left with the cars were so commonly thrown away by mischievous boys, or stolen by negroes, that the train master was put to great inconvenience, and adopted the plan of attaching them permanently to the cars. That when the train struck the stationary car and failed to make a coupling, the said stationary car was driven back on the track about one-half of its length, its whole length being from twenty-seven to thirty feet; and if the attempt to couple had been successful, the said stationary flat car would have been driven back not more than three feet. That at the time of the concussion of the moving train with the stationary car, the said stationary car had been discharged of about one-half of its load of lumber; that on the day on which the plaintiff received his injury, some time between ten o'clock A. M. and two o'clock P. M., one of the agents of the defendant, F. M. Ironmonger, whose business it was to superintend the railroad track on Widewater street and attend to the moving of the trains, was passing along said street, and saw a small boy, whom he supposed to be the plaintiff, in rear of the wheel of the said stationary flat car in front of Mr. Howell's lumber-yard, and in a very dangerous position, and drove him away from said car in the direction of the residence of Mrs. Ormsby, mother of the plaintiff; that Mrs. Ormsby, the mother of the plaintiff, lived in a tenement on Widewater street, between the United engine-house and the flat car standing in front of Mr. Howell's lumber-yard, being about one hundred and eighty feet distant from the engine-house, and about forty feet distant from the said stationary car; that on the afternoon of the last day of August, 1869, about three and a half o'clock, she, Mrs. Ormsby, being sick at the time, having become the mother of an infant about four days before, and her husband being absent from home, directed her servant to mind her children; that the servant took them into the kitchen; that when the servant brought in the dinner, the plaintiff followed her; that she directed the servant to get a basin of water and wash the plaintiff's face; that the plaintiff, hearing her give this direction to the servant, ran to the front door, which opened on Widewater street; that there were two lower rooms in her house, one immediately in the rear of the other, that the front room was occupied by her as a grocery and the rear room as a sitting-room, that the door opening upon Widewater street and the door between the two rooms are immediately opposite each other; that at the time she was lying upon a lounge in the back room, which was in a position that enabled her to command a view of the front door; that while the plaintiff was standing in the front door, in full view of the mother, she directed the servant, who had brought the basin of water, to go directly and bring the plaintiff; that the plaintiff, hearing this direction to the servant, ran out upon the street; that the servant went immediately after the plaintiff, going out of the back door and through a lane leading to Widewater street; that the servant was gone not over two or three minutes, and when she returned, brought the plaintiff in her arms, with his right arm mangled and hanging by his side; that the plaintiff at the time of the injury was two years and ten months old, having been born in the month of October, 1866.
At the time the plaintiff ran out the front door on Widewater street, there were three persons standing in front of the United engine-house and one other person standing in front of a house three or four doors between Mrs. Ormsby's residence, all being on the north side of the said railroad track; that the last named person was about sixty feet from the said stationary car, looking in the direction of the moving train at the time it came up to the stationary car; that the plaintiff was not seen by any of these persons or by any of the defendant's agents on the moving train until the flat car had been put in motion by the said moving train, which was moving westwardly; that then the witness standing west of the said flat car, and looking eastwardly in the direction of the moving train, saw the plaintiff lying about six feet west of and beyond the said flat car, with his arm upon the track and the rest of his body on the north side thereof, looking as though he had stumbled and fallen and was struggling to get up; that when the plaintiff was first seen by the persons standing in front of the United engine-house, he was being carried around by the wheel of the flat car, which had been put in motion by the moving train, and he was not seen by any of the agents of the defendant until he had been taken from under the wheel and was being carried in the direction of his mother's house by a colored woman; that when the moving train came in contact with the stationary car there was a colored man standing on the said car engaged in throwing off lumber, and the said colored man was not in the employment of the defendant.
That the neighborhood in which Mrs. Ormsby, the mother of the plaintiff, lived, on Widewater street, was thickly settled, and there were a great many children living in the houses on both sides of Widewater street in that neighborhood; that the plaintiff's mother had a nurse employed, whose duty it was specially to attend to the plaintiff, and his said mother never permitted him to go on the street; that since the injury was received the plaintiff has been very troublesome, has complained of pain in his breast, and has required constant attention; that after the injury was received, by which the plaintiff's right arm was mangled and nearly severed from his body, it became necessary to amputate, and that it was amputated and removed from the socket at the shoulder; that the loss of the arm is injurious to the plaintiff's health, that it leaves his right lung more or less unprotected, and creates a predisposition to sickness, such as pneumonia, pleurisy, and other pulmonary complaints; that owing to the loss of the arm, the plaintiff's right side will not de velop as well as his left, and his general health will be affected; that he cannot engage in manual labor requiring the use of two hands, and in order to make a livelihood he will have to resort to some other employment.
That on the 26th January, 1867, the select and common councils of the city of Norfolk adopted an ordinance in the words and figures following to-wit: " That the Norfolk and Petersburg Railroad Company be and they are hereby authorized and granted the right and privilege to enter upon and lay the track of their road in any and upon such of the streets of this city as the directors of said company may deem fit, proper, and prescribe for their use and purposes, either in the loading or unloading of cars, as well as the transit of cars, engines and trains, on the express condition, however, that the speed of their cars, engines, or trains shall not within the limits of the city exceed a rate of five miles per hour."
That although the defendant was permitted by the said ordinance to run its cars and engines through the streets at a rate of speed not exceeding five miles an hour, the instructions given to all the agents and employees of the road were not to exceed the rate of four miles an hour, and always to ring the bell and to give all the necessary and proper signals above mentioned in passing through the said street; and that the witnesses of the plaintiff, one of whom was sixty feet, and the others about one hundred and eighty feet from the stationary car, watched the train as it moved down the said street, and did not hear the sound of the engine bell, and did not see or hear any signal by those on said train. And these are all the facts proved.
On the trial of the cause the defendant excepted to various opinions and rulings of the court. The first was to the refusal of the court to give to the jury certain instructions asked, and the giving one of them with a modification. They are as follows:
Instruction No. 1. If the jury believe from the evidence, that the defendants were not guilty of negligence, but were exercising ordinary care in the management of their engine and cars at the time of the injury complained of in the plaintiff's declaration, they must find for the defendant.
Instruction No. 2. If the jury believe from the evidence, that the plaintiff at the time the injury complained of was sustained, was only two years and ten months of age, and was permitted by his parents to go on the railroad track of the defendant on Widewater street, without placing him under the charge of some one capable of taking care of him and protecting him from injury, then the said parents were guilty of negligence and a want of proper care for the child, and such negligence and want and proper care in thus permitting the plaintiff to be exposed to injury on the said railroad track, furnishes the same answer to an action by the child for such injury, as would the negligence or other fault of an adult plaintiff; and if the jury further believe from the evidence, that the injury complained of in the plaintiff's declaration would not have happened but for such negligence and want of proper care on the part of the parents, then they must find for the defendants.
Instruction No. 3. If the jury believe from the evidence, that the plaintiff at time of the injury complained of was so concealed either behind or under the stationary car as not to be visible to the agents of the defendant, and that the said agents of the defendant at the time of the said injury were exercising ordinary care and watchfulness, and the said engine was not running exceeding the rates of one or two miles per hour, then there was not such negligence on the part of the defendants as renders them liable in this action, and the jury will therefore find for the defendant.
Instruction No. 4. The defendants to maintain the issue on their part, having introduced evidence tending to prove that in the forenoon of the day on which the plaintiff received the injury complained of, the defendant sent a flat car loaded with lumber, to a point on their railroad track on Widewater street opposite the lumber yard of Murdock Howell, for the purpose of delivering the said lumber to the said Howell; that in the afternoon of the same day the defendants sent an engine with a train of five box cars and three flats, (the box cars being all together next to the engine), from the depot down Widewater street for the purpose of collecting the cars on the said street and taking them out to the depot; that the engine was pushing the said train down the said track; that one of the employees of the defendants was stationed upon the top of the rearmost box car to look out for obstructions upon the track, and, if any such obstructions appeared, to notify the engineer; that two train hands of the said defendants were stationed on the rearmost flat car of the moving train for the purpose of coupling on to stationary cars along the track; that the employee of the defendant stationed as aforesaid on the top of the rearmost box car, when the moving train got within about one hundred and eighty feet of the stationary car in front of Murdock Howell's lumber-yard, gave a signal to the engineer to slacken his speed for the purpose of coupling with the said car, which was obeyed by the engineer, and afterwards gave another signal when the moving train had approached very near to the aforesaid stationary car, in order to notify the engineer to run still slower, which signal was also obeyed by the engineer; that the said employee so stationed on the top of the rearmost box car was constantly on the lookout for obstructions upon the railroad track; that he saw none except the stationary car aforesaid; that the train at a distance of one hundred and eighty feet from the stationary car was running between two and three miles per hour; that at the time the moving train struck the stationary car it was moving as slowly as it could be moved; that when the train struck the stationary car the shock or concussion was not greater than is usually the case; that the force with which the moving train came against the stationary car was so feeble as to drive the stationary car back not exceeding ten or fifteen feet; that the two employees of the defendants, whose duty it was to make a coupling with the stationary car, failed to do so because some one, while the stationary car was standing on the track in front of Howell's lumber-yard, had removed the coupling pin, and another had to be gotten from the engine before the coupling could be effected; that the bell upon the locomotive was regularly and continuously rung from the time the train left the depot until the train struck the stationary car aforesaid; that the said employee stationed on the top of the rearmost box car, although constantly on the lookout, did not see the plaintiff until after he had received the injury complained of; that the said plaintiff was so concealed at the time, either behind or under the stationary car, as to be wholly invisible to the said employee; that none of the said employees saw the plaintiff until after he had received the injury complained of; and that one of the said employees, whose duty it was to assist in coupling the train to the flat car, jumped from the train about twenty steps above the stationary car and went back to the engine for a coupling pin; that he, too, was on the lookout for obstructions upon the railroad track, and that he did not see the plaintiff until after he had received the injury complained of; that it was the custom of the said defendants, in running their trains through Widewater street, to have on their trains a sufficient number of hands to look out for obstructions and guard against accidents, and that on the occasion when the injury complained of was received the said defendants had the usual number of hands on the train, and used the customary precautions against accident.
The court instructs the jury, that if they believe the evidence proves what it tends to prove, the defendant has not been guilty of negligence or want of ordinary care, and therefore is not liable for damages in this suit.
Instruction No. 5. The court instructs the jury, that the plaintiff is not entitled to recover damages for the injury complained of, if they believe from the evidence that the plaintiff's own negligence contributed directly to the injury, although they may further believe from the evidence that the defendants did not use proper care and caution in running their cars at the time said injury was sustained.
Instruction No. 6. The court instructs the jury, that as an infant is chargeable with the negligence of his parents or guardian in permitting him to be exposed to the risk of injury, and is debarred from recovering damages in the same cases in which he would be precluded from recovering if he were of full age and had been himself guilty of such negligence, the plaintiff in the case is not entitled to recover damages from the injury complained of, if they believe from the evidence that his parents' negligence contributed directly to that injury, although they may further believe from the evidence that the defendants did not use proper care and caution in running their cars at the time said injury was sustained; unless they farther believe from the evidence that the defendants were aware of the said parents' negligence, and failed to use proper care and caution to avoid the injury.
Instruction No. 7. If the jury believe from the evidence that the plaintiff, at the time the injury complained of was sustained, was only two years and ten months of age, and was permitted by his parents to go unattended on the railroad track of the defendants on Widewater street, then the said parents were prima facie guilty of negligence and a want of proper care for the child; and such negligence and want of proper care, in thus permitting the plaintiff to be exposed to injury on the said railroad track, furnishes the same answer to an action by the child for such injury as would the negligence or other fault of an adult plaintiff; and if the jury believe further from the evidence that the injury complained of in the plaintiff's declaration would not have happened but for such negligence or want of proper care, then they must find for the defendant.
Instruction No. 8. The court instructs the jury that the plaintiff is not entitled to recover damages for the injury complained of, if they believe from the evidence that the defendants were using ordinary care and caution in the pursuit of their lawful business at the time said injury was sustained.
Instruction No. 9. If the jury believe from the evidence that the injury complained of in the declaration was occasioned by the plaintiff's throwing himself in the way of a moving train of cars belonging to the defendant, and that he was run over before the agents of the defendants having charge of the said train could prevent it, they must find for the defendants.
But the court refused to give the instructions numbered 2, 3, 4, 5, 6, 7, 8, and 9, and gave the instruction number 1, with the following modification:
Modification of Instruction No. 1. The terms negligence and want of ordinary care are correlative terms. If the defendants are guilty of negligence as alleged in the declaration, the plaintiff is entitled to recover; if the defendants exercised ordinary care the plaintiff is not entitled to recover. Ordinary care depends on the circumstances of the particular case, and is such care as a person of ordinary prudence under the circumstances would have exercised. For instance, the defendants while running along their road through the country would not be required to take the same care as when passing a crossing where the highway crosses their road--they must exercise a greater degree of care; and when they enter the city and pass along the streets where many persons are passing, and where there are dwelling houses on each side of the street, they must exercise greater care. If under all the circumstances of the case, looking to all the evidence in the case, you believe the defendants exercised such care as a prudent man would have exercised under the circumstances, then the defendants are not liable. But should you believe the defendants guilty of negligence in running their cars, yet if you believe the plaintiff by his negligence contributed to the injury, the defendants are not liable.
To ascertain whether the plaintiff was guilty of negligence you will apply the same rules as to the defendant; if, looking to his age and the circumstances, you think he exercised such care as was reasonably to be expected of a child of that age, then the defendants are liable, though the plaintiff by his act did contribute to the injury. If you believe that the parents of the child did not exercise ordinary care in allowing their child to be on the street without an attendant, yet the defendants are liable; this is an action brought by the child, it is his cause of action and he is not responsible for the negligence of the parents.
The second exception is as follows:
The plaintiff, to maintain the said issue on his part, offered to give in evidence to the jury that on the last day of August 1869 he had been injured by the cars of the defendant running against him on Widewater street within the limits of the city of Norfolk; to which evidence the defendant, by its counsel, objected as improper to go to the jury because of the variance between the said evidence and the allegations contained in the declaration. But the court being of opinion that there was no variance, overruled the objection to the said evidence, and permitted the same to go to the jury.
The third exception was as follows:
The plaintiff to maintain the issue on his part, introduced a witness, Dr. James D. Galt, to prove that owing to the injury which he had received, and the loss of his arm, he was incapacitated from the pursuit of the ordinary vocations of life which required the use of two hands, and would be compelled to resort to some other means of obtaining a livelihood. To which evidence the defendant, by its counsel, objected as improper to go to the jury. But the court being of opinion that the said evidence was proper, overruled the objection and permitted it to go to the jury.
Upon the application of the defendant a supersedeas was awarded by one of the judges of this court.
The case was elaborately argued in printed notes by Goode & Chaplain, for the appellant, and by Scarburgh, Duffield & Sharp, for the appellee.
OPINION
MONCURE P.
This is a writ of error and supersedeas to a judgment of the court of the corporation of the city of Norfolk, rendered on the 28th day of May 1872 in an action of trespass on the case, wherein Charles Ormsby, an infant, suing by James Ormsby, his next friend, was plaintiff, and the Norfolk and Petersburg railroad company were defendants. The injury complained of in the declaration was, that the defendants so negligently conducted their engine and cars as to strike them with great force and violence against the plaintiff, by means whereof his right arm was so fractured and injured that it became necessary to amputate the same, and it was thereupon amputated, and he was otherwise greatly wounded and injured, and by means of the premises the plaintiff was so maimed as to be disabled for the remainder of his life. Issue was joined on the plea of not guilty, which was tried by a jury; and a verdict was rendered in favor of the plaintiff, whose damages were assessed at $8,000. Whereupon the defendants moved the court to set aside the verdict and grant a new trial, upon the ground that the verdict was contrary to the law and the evidence. But the court overruled the motion, and the defendants excepted to the opinion of the court, and tendered a bill of exceptions, which was made a part of the record. The facts proved on the trial of the cause were certified by the court; and judgment was rendered in pursuance of the verdict.
On the trial of the cause the defendants excepted to various opinions and rulings of the court, besides the opinion and ruling of the court in overruling their motion for a new trial, and tendered their several bills of exceptions, which were also made a part of the record. To the judgment aforesaid, the defendants applied to a judge of this court for a writ of error and supersedeas, which were accordingly awarded. The errors complained of are assigned in the petition for said writ, and are founded on the said bills of exceptions. The case was argued before this court with great ability and learning; and we will now proceed to consider and dispose of the questions presented by the record in the order in which they arise.
First We are of opinion that the court below did not err in overruling the motion of the defendants to set aside the verdict of the jury and grant a new trial, upon the ground that the said verdict was contrary to the law and evidence.
The defendants contend that the injury complained of in this case did not proceed from any fault or neglect on their part; and that if it proceeded from their neglect at all, there was such contributory negligence on the part of the plaintiff or his parents in regard to the cause of the injury as exonerates them (the defendants) from liability to him therefor. We will consider each of these grounds of defence; and,
First, whether the injury proceeded from any fault or neglect on the part of the defendants?
Could the injury have been avoided by the use of any reasonable means which might and ought to have been used by the defendants? We are constrained to say that it could. In running cars propelled by steam along a railroad over the streets of a populous city, where there are a great many children, the greatest care and precaution are necessary, and ought to be used, to avoid danger to human life. The injury complained of in this case was caused by the running of the flat car at Howell's over the plaintiff, who had fallen on the railroad track just beyond the car; and the running of that car over the plaintiff was caused by its being propelled by the engine and moving train before it had been coupled with that train; whereas it ought and might conveniently have been coupled with that train before it was set in motion. The facts are certified, that if the coupling had been done before the flat at Howell's lumber yard was set in motion, the injury would not have occurred; for, in that case, the flat car would not have been propelled more than three feet, and so would not have touched the plaintiff, who was " lying about six feet west of and beyond the said flat car, with his arm upon the track, and the rest of his body on the north side thereof, looking as though he had stumbled and fallen, and was struggling to get up." Whereas, " when the train struck the stationary car, and failed to make a coupling, the said stationary car was driven back on the track about one-half of its length, its whole length being from twenty-seven to thirty feet." In consequence of which the flat not only reached the plaintiff lying on the track, but passed over him, and carried him several times around the car wheel. Why was not this connection made? Because there was no coupling pin then there with which to make it. Why was not one there? It is said that one had been left there with the flat in the morning, as had been the usual practice in such cases, but that somebody had taken it away. Why was not such a probable danger guarded against by fastening the pin to the flat, so that it could not be taken away? or, why was not the precaution used of bringing a pin with the moving train, to be sure of being ready to make the connection at once? It is certified " that in Portsmouth the coupling pins left with the cars were so commonly thrown away by mischievous boys, or stolen by negroes, that the train master was put to great inconvenience, and adopted the plan of attaching them permanently to the cars." Why was not the same precaution used in Norfolk, where the obvious danger of loss of the pins must have been just as great as in Portsmouth? Again, why was not the obvious precaution used--of making an examination before the stationary flat at Howell's was set in motion, to see if there was anybody or anything under or near the car which could be injured by its being set in motion? This would have taken very little time, and given very little trouble. There were several hands on the moving train, either one of which, without stopping the train, could have made the examination. It may be said that it was not probable there was any person or thing under or near the flat which could be hurt, as nothing was seen by those on the train or by the bystanders. Nothing, it seems, was carefully looked for by them. But was it so improbable as to excuse such a want of caution when human life and limb were at stake? A flat had been left standing in the street of a populous city from between nine and ten o'clock in the morning until between four and five o'clock in the afternoon of the day on which the injury complained of was done. Was it strange or extraordinary that the plaintiff, a child only two years and ten months old, should have been found on the track under or near the car then standing just in front of his mother's door, and only forty feet therefrom? A flat left nearly all day in the street might naturally be expected to be a play place for the neighboring children.
We are therefore of opinion, that the injury complained of in this case proceeded from the negligence of the defendants, who are therefore liable therefor; unless they can be exonerated from such liability on the ground of contributory negligence. We therefore proceed now to consider:
Secondly. Whether there was such contributory negligence on the part either of the plaintiff or his parents, in regard to the cause of the injury, as exonerates the defendants from liability to him therefor.
In regard to any negligence on the part of the plaintiff himself, it has not been contended, and cannot be, that he was old enough to be guilty of any, or, at all events, that he was guilty of any in this case. And in regard to any negligence of his parents, or either of them, if such negligence can be imputed to him, about which we will presently enquire, when we come to consider the case upon the instructions, we think it very clear that there was in fact no such negligence on their part. The facts which are certified in the record are conclusive on this subject; and we will not repeat them, as they may be seen by reference to the certificate.
We therefore conclude, on this branch of the subject, that the court below did not err in overruling the motion of the defendants to set aside the verdict, upon the ground that it was contrary to the law and evidence.
Second. We are of opinion, that the court did not err in refusing to give the instructions asked for by the defendants, numbered two, three, four, five, six, seven, eight and nine; nor in giving instruction numbered one, with certain modifications.
The second instruction is objectionable on two grounds: First, the plaintiff was not " permitted by his parents," as the instruction assumes, " to go on the railroad track of the defendants on Widewater street, without placing him under the charge of some one capable of taking care of him and protecting him from injury; " and, secondly, the said instruction imputes to the infant plaintiff the assumed negligence of his parents; for which, even if there had been any such negligence, as in fact there was not, the infant plaintiff would not have been responsible. On this question, as to the liability of infants for the neglect, imputed to them, of their parents, there appears to be much conflict in the cases, many, and perhaps most of which were cited in the arguments of the learned counsel. But without following them through their review of the cases, we deem it sufficient to say, that we concur in the principle of the case of Lynch v. Nurden, 1 Ad. & El., N. S., 29, 41 Eng. Com. Law R. 422, and others of that class; which decide that the neglect of parents and guardians is not imputable to infant children and wards in such cases; and that we do not concur in the principle of the case of Hartfield v. Roper, 21 Wend. R. 615, and others of that class, which decide the contrary.
The third instruction is objectionable, because it was calculated to mislead the jury, and was apparently contradictory. Though the plaintiff might not have been actually visible to the agents of the defendants, he might have been seen by them, certainly, if they had looked for him, as they ought to have done. In other words, they ought to have made sure, as they might have done, that there was no person under or behind the stationary car when they set it in motion. And besides, they ought to have coupled the moving train with the stationary car before they set the latter in motion; in which case they would have guarded against all injury to persons visible or invisible.
The fourth instruction is objectionable, for reasons already given in regard to the first assignment of error.
The fifth instruction is objectionable, because it imputes negligence to the plaintiff, of which, from his tender years, he was not capable.
The sixth and seventh instructions are objectionable, for reasons already stated, because they hold the plaintiff responsible, by imputation, for the supposed negligence of his parents.
The eighth instruction embodies a general truth which seems to be unobjectionable in itself; but it is clearly embraced in the first instruction as modified by the court.
The first instruction, as modified by the court, is unobjectionable, and embodies all the law which seems to apply to the case, or to be necessary to enable the jury to decide it properly.
Third. We are of opinion that the court below did not err in overruling the objection of the defendants on the ground of the supposed variance mentioned in their " bill of exceptions number two; " being of opinion that there was no such variance.
Fourth. We are of opinion, that the said court did not err in overruling the objection of the defendants to the evidence mentioned in their " bill of exceptions number three."
Upon the whole, we are of opinion, that there is no error in the judgment of the court below, and that it ought to be affirmed.
JUDGMENT AFFIRMED.