Denver City Tramway Co. v. Nicholas

Mr. Justice Bailey

delivered the opinion of the court:

The conduct of the trial and the control of counsel in the arguments and statements made to the jury is so fully within the discretion of the court, and the question whether a new trial should be granted for misconduct of counsel in his remarks to the jury resting in the sound judicial discretion of the trial court, the matter will not be interfered with on appeal unless it manifestly appears that such discretion is clearly abused.—Hill v. Colo. Nat’l Bank, 2 Colo. App. 324; Felt v. Cleghorn, 2 Colo. App. 4; San Miguel Consld. Gold Min. Co. v. Bonner, 33 Colo. 207; vol. 5 Current Law, 255-263.

Another contention'of appellant is that the court permitted plaintiff to call an expert witness to describe the different kinds of mechanical appliances used upon defendant’s cars. The witness did not assume to know the kind that were used upon tire particular ca.r upon which the plaintiff was playing at the time, or shortly before, the accident.

We do not see that the defendant could have been materially prejudiced or injured by a description of the different kinds of mechanical devices used upon its several cars.

The refusal of the court to give certain instructions requested by the defendant is assigned as error. The abstract of record before us does not purport to contain the entire charge of the court to the jury. We must therefore presume that the charge, as given, substantially embraced each of the instructions requested by defendant, to which it was by law entitled. —5 Current Law, and cases cited in Note 40.

This brings us to the determination of the sufficiency of the complaint, and the correctness of the three instructions reported in the abstract as given by the court at the instance of the plaintiff, upon the correctness or incorrectness of which, and the sufficiency or insufficiency of the complaint, depends the entire case, as we view it.

It is asserted that the complaint is defective because of the averment that defendant “unlawfully occupied and obstructed” Alaska street; that this does not amount to an allegation of a fact, but is a conclusion of law. For the purpose of this ease, it may be conceded that this is true. In our judgment the merits of the case are not affected by the legality or illegality of the occupation of Alaska street by defendant company.

The other objection to the complaint goes to the merits of the case, that is to say, defendant contends: that if children were attracted by and went upon the appellant’s cars, this does not in law imply a duty on its part to prevent them from going thereon. This, in brief, is the contention of defendant, and we may say that it is supported by some authority, but in our judgment the weight of authority and reason is against it.

Other objections are that plaintiff was a trespasser and that he was guilty of contributory negligence, and that the complaint upon its face shows that he was guilty of contributory negligence. There are other contentions of a like character. What we will presently say we think will show that there is no merit in these contentions, according to the rule adopted by many of the states, the United States supreme court, and heretofore mentioned with favor by both this court and the court of appeals. This rule is as follows :

“If an owner sees fit to keep on his premises something that is an attraction and allurement to the natural instincts of childhood, the law imposes upon bim the corresponding duty to take reasonable precautions to prevent the intrusion of children or to protect from personal injury such as may be attracted thereto.”—Koppelkrom v. Colo. Cement Co., 16 Colo. App. 278.

Perhaps this doctrine was first announced in the case of Lynch v. Nurdin, 4 Perry & Davison’s Reports, which was a case of an expressman who left his empty cart and horse on the street. Some children engaged in playing with it and one of them was injured, the court saying: “Suppose that the plaintiff merely indulged in the natural instincts 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 blameable carelessness of his servant having tempted the child, he ought not to reproach the child for 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.”

This was followed by the courts of Connecticut in Birge v. Gardner, 19 Conn. 507, which was a case in which a child was injured by swinging on a gate.

In the case of Stout v. R. R. Co., 7 Dillon 294, this rule was adopted by Judge Dillon in his charge to the jury, and was afterwards affirmed by the supreme court of the United States in R. R. Co. v. Stout, 17 Wallace 657, in which the cases of Lynch v. Nurdin and Birge v. Gardner, supra, were cited in support of the doctrine.

As to the contributory negligence of plaintiff, and the contention that he could not recover because he was a trespasser, in the case last cited it is 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. ’ ’

The same rule is announced in R. R. Co. v. Gladmon, 15 Wallace 401.

* This court in the case of Street Ry. Co. v. Sherman, 25 Colo. 114, where the doctrine of the Lynch, Birge and Stout cases was approved, said:

“In applying the rule that he who seeks to recover damages for a personal injury suffered from the negligence of another, must not himself be guilty of negligence that substantially contributed to .the result, the law discriminates between children and adults, the feeble and strong, and only requires of each that degree of care to be expected in view of his age and condition. ’ ’

In Elliott on Railroads, § 1261, it is said:

“The general rule is well settled that children are only required to exercise such care for their own safety as may be reasonably expected in view of their age and condition. This question is usually one for the jury to determine.”

And sufficient authorities' cited by the author in support of this doctrine.

It,is asserted by defendant that this boy, being thirteen years of age, was sui juris. This is a question which was properly left to the jury to say by their verdict whether-he was or was not (Mangan v. Brooklyn R. R. Co., 38 N. Y. 455), and was sufficiently presented to the jury by the instructions reported in the abstract.

As to the issues of fact, we do not think it necessary to examine minutely the evidence on which it is said that the jury came to a wrong conclusion in their verdict. Every cause must depend upon its own circumstances. Our business is to see that true principles of law are applied to the circumstances as developed in this case. We are of the opinion that the complaint does state facts sufficient to constitute a cause of action; that the instructions given by the court are in harmony with the law, and that there was legal evidence upon which the jury might base its verdict.

It may be well to say that in addition to the authorities cited in support of the doctrine herein announced, many more may be found. The same rule has been practically adopted in Minnesota, Kansas, Texas, Missouri and Illinois.

' Tailing it all in all, we are inclined to believe that the doctrine adopted by this court is the better policy. The judgment of the district court will therefore be affirmed.

Affirmed.

Chief Justice Gabbert and Mr. Justice Goddard concur.