Birmingham Ry. L. & P. Co. v. Landrum , 153 Ala. 192 ( 1907 )

HARALSON, J.

— This was an action by plaintiff, a boy who was about 2 months over 11 years of age. It is well settled, that a minor between 7 and 14 years of age is prima facie incapable of exercising judgment and discretion, but evidence may be received to show capacity. —B. R. L. & P. Go. v. Jones, 146 Ala. 277, 41 South. 148] T. G. G. & 1. Go. v. Enslen, 129 Ala. 345, 30 South. 600. In the latter case it was said: “Contributory negligence may, under some conditions, be imputed to an infant under 14 years of age, as a matter of law, as where the evidence of his care and prudence and his capacity to exercise judgment and discretion is not in conflict, and different inferences cannot be drawn therefrom. The fact, however, that the infant was shown to be ‘bright, smart and industrious,’ without more, is not sufficient to overcome the presumption of want of discretion which his age prima facie implies; for, an infant may be all this and yet be so wanting in judgment and discretion as to make him rash and imprudent.”

There were no assignments of error on any question of pleading. .We take them up as made.

The second, third and fourth assignments are not argued in brief of appellant, and will be treated as waived. —B. R. L. & P. Co. v. Oldham, 141 Ala. 200, 37 South. 452.

The first assignment has reference to the action of the court in overruling defendant’s objection to a question asked witness Matthews. Defendant stated no ground of objection to the question, and the court below could not be compelled to hunt for grounds. — L. & N. R. R. Co. v. Banks, 132 Ala. 489, 31 South. 573.

Charge 1, asked and refused to defendant, ignores consideration of whether or not plaintiff’s action proximately contributed to his injury. — Jones’ Case, 146 Ala. 277, 41 South. 148. Furthermore, the charge is faulty in that it fixes the liability of a child for contributory negligence, though only about 11 years old, solely upon the hypothesis, that he “had sufficient age, judgment and discretion to know and appreciate the danger of going upon defendants track, .‘without stopping find looking for the approach of cars thereon.” It is not the ability to know or even appreciate danger which might make a child, between 7 and 14 years old, responsible for contributory negligence, but it must be a maturity and discretion beyond its years, which would lead it to take care. It should have been as blameworthy as a person over 14 years ordinarily is. This, as a matter of law, cannot be affirmed of the plaintiff.

For the same reason, the second and fifth charges were properly refused. A child of 11 might appreciate the danger that he would be in, if he neither stopped, looked or listened, when he could not appreciate the danger, if he was conscious that he was listening, but did not stop. It may be assumed as a fact, that most persons do not think that ordinary care requires them to stop in crossing a street car track, while they would admit the necessity of looking and listening with reasonable diligence.

Charge 3, refused for defendant, is unintelligible, in the use of the word “just,” which warranted the court in refusing it.

The fourth charge predicates that, at the time plaintiff was hurt, he was capable of being guilty of negligence, and assumes that he did not stop, look and listen. Besides the plaintiff testifies, and his evidence is undisputed, that he did listen, Avhich the charge implies he did not do, and in this respect it was misleading. It also misleads in that, plaintiff’s negligence, if guilty of any, would not be excused by the negligent failure of defendant’s servants to observe their usual precautions. The place where the injury occurred was at a station, where the cars were in the habit of stopping for persons to get on and off the train. Under such circumstances, the carrier owes them a duty, that while making their egress they be not struck by other passing trains, and while a passenger is not absolved from the duty of exercising care for his safety, he has a right to presume that the tracks intervening between the place where he is to alight, and the station, will be kept safe while he is crossing; so that the mere fact that he fails to look and listen for an approaching train before attempting to cross, will not, as a matter of law, be ascribed to his contributory negligence, and will not prevent a recovery of damages if he is struck by such a train. — 2 Thompson on Negligence, § 2705.

The evidence of the defendant tended to show that the freight car that struck plaintiff, was moving at the time 6 or 8 miles an hour as one witness testified, and. that it was running 8 or 10' miles an hour as testified by another; an other, that it ran 8 or 10 miles, and ran two or three car lengths after it struck plaintiff. In considering plaintiff’s negligence, all such facts are to be considered.

Charges 6 and 8 were properly refused. The sixth, because as a matter of law it asserts that the plaintiff was guilty of contributory negligence — a question clearly for the jury under all the evidence.

Charge 7 was properly refused. The principle asserted was calculated to mislead the jury, since the evidence shows that the boy was injured at the station, where the car from which he alighted stopped, or so near to the station, as not to have relieved defendant’s servant of the duty of giving signals of the approach of the freight car that injured him.

The ninth charge was improper. It tells the jury, as a matter of law, that the defendant was entitled to a verdict, unless the jury found that it was the custom and practice on defendant’s road, at the time plaintiff was hurt, for the motorman to give signals of warning and to reduce speed or stop when approaching and passing cars on the adjoining track, which were standing or moving. This would give defendant a license to go on violating the dictates of common prudence, and he absolved from all responsibility for such violation.

The tenth charge scarcely needs argument to condemn it. Under it, as counsel for appellee well says, the jury would have been compelled to find for defendant, although the plaintiff was a passenger, and got off the car six inches before it stopped at the station, and while it was moving very slowly, scarcely perceptibly, although the motorman saw plaintiff’s danger in time to avoid it by the exercise of diligence after discovering his peril. There is no such issue in the case as. a violation of custom. It is one of negligence vel non. The plaintiff is not complaining of the violation of the custom, but of negligence of which custom and its violation are merely evidence.

Charge 11 is involved and misleading, and for that reason was properly refused.

The twelfth, thirteenth, fourteenth and fifteenth charges were mere general charges under counts 1, 2 and 3 of the complaint, and, from what has been said, there was no room for such instructions.

The sixteenth charge Avas also properly refused. The charge is not that defendant, but its servants, were guilty of wanton or intentional negligence. — City Delivery Co. v. Henry, 139 Ala. 161, 34 South. 389.

Wantonness consists,.as we have defined it, in consciousness on the part of the person charged with it, from his knowledge of existing circumstances and conditions, and that his-conduct will probably result in injury, and yet, with reckless indifference or disregard of the natural or probable consequences, but without intention to inflict injury, he does or fails to do the act.— L. & N. R. R. Co. v. Anchors, 114 Ala. 492, 22 South. 279, 62 Am. St. Rep. 116.

The second count, on which issue was taken, charges wantonness.

It was open to the jury to find under the evidence, that defendant’s servant was guilty of wantonness. He ran into the station at a rapid rate of speed, with the situation known to the motorman. To run a car as he did this one, according to the tendencies of the evidence, would support the charge of wantonness. — B. R. L. & P. Co. v. Oldham, 141 Ala. 200, 37 Southt. 452.

The seventeenth charge does not predicate how far east of the regular stopping place it was when plaintiff was' injured. In this respect it was too indefinite. It might have been an inch or foot or many feet. This did not exempt the defendant from liability under the evidence.

Charge 18 does not distinguish between the passenger car moving rapidly or barely moving. A passenger may alight from a slowly moving street car. A passenger car, within a very short distance of the station is likely to be discharging passengers, and it would be culpable negligence for another car operated by the same company upon the same highway, to run at a full or very rapid speed. The nineteenth charge is subject to the same infirmity.

That disposes of tbe assignments of error insisted on. No error appearing, tlie judgment below is affirmed.

Affirmed.

Tyson, O. J., and Simpson and Denson, JJ., concur.