1. 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.
2. While a railway company is not bound to the same degree of
care in regard to mere strangers who are even unlawfully upon its
premises that it owes to passengers conveyed by it, it is not
exempt from responsibility to such strangers for injuries arising
from its negligence or from its tortious acts.
3. Though it is true in many cases that where the facts of a
case are undisputed, the effect of them is for the judgment of the
court, and not for the decision of the jury, this is true in that
class of cases where the existence of such facts come in question,
rather than where deductions or inferences are to be made from
them. And whether the facts be disputed or undisputed, if different
minds may honestly draw different conclusions from them, the case
is properly left to the jury.
Henry Stout, a child six years of age and living with his
parents, sued, by his next friend, the Sioux City and Pacific
Railroad Company, in the court below, to recover damages for an
injury sustained upon a turntable belonging to the said company.
The turntable was in an open space, about eighty rods from the
company's depot, in a hamlet or settlement of one hundred to one
hundred and fifty persons. Near the turntable was a traveled road
passing through the depot grounds, and another traveled road
nearby. On the railroad ground, which was not enclosed or visibly
separated from the adjoining property, was situated the company's
station house, and about a quarter of a mile distant from this was
the turntable on which the plaintiff was injured. There were but
few houses in the neighborhood of the turntable, and the child's
parents lived in another part of the town, and about three-fourths
of a mile distant. The child, without the knowledge of his parents,
set off with two other boys, the one nine and the other ten years
of age, to go to the depot, with no definite purpose in view.
When
Page 84 U. S. 658
the boys arrived there, it was proposed by some of them to go to
the turntable to play. The turntable was not attended or guarded by
any servant of the company, was not fastened or locked, and
revolved easily on its axis. Two of the boys began to turn it, and
in attempting to get upon it, the foot of the child (he being at
the time upon the railroad track) was caught between the end of the
rail on the turntable as it was revolving, and the end of the iron
rail on the main track of the road, and was crushed.
One witness, then a servant of the company, testified that he
had previously seen boys playing at the turntable, and had
forbidden them from playing there. But the witness had no charge of
the table, and did not communicate the fact of having seen boys
playing there, to any of the officers or servants of the company
having the table in charge.
One of the boys, who was with the child when injured, had
previously played upon the turntable when the railroad men were
working on the track, in sight, and not far distant.
It appeared from the testimony that the child had not, before
the day on which he was now injured, played at the turntable, or
had indeed ever been there.
The table was constructed on the railroad company's own land,
and, the testimony tended to show, in the ordinary way. It was a
skeleton turntable -- that is to say it was not planked between the
rails, though it had one or two loose boards upon the ties. There
was an iron latch fastened to it which turned on a hinge, and, when
in order, dropped into an iron socket on the track, and held the
table in position while using. The catch of this latch was broken
at the time of the accident. The latch, which weighed eight or ten
pounds, could be easily lifted out of the catch and thrown back on
the table, and the table was allowed to be moved about. This latch
was not locked, or in any way fastened down before it was broken,
and all the testimony on that subject tended to show that it was
not usual for railroad companies to lock or guard turntables, but
that it was usual to have a latch with a catch, or a draw-bolt, to
keep them in position when used.
Page 84 U. S. 659
The record stated that
"the counsel for the defendant disclaimed resting their defense
on the ground that the plaintiff's parents were negligent, or that
the plaintiff (considering his tender age) was negligent, but
rested their defense on the ground that the company was not
negligent, and asserted that the injury to the plaintiff was
accidental or brought upon himself."
On the question whether there was negligence on the part of the
railway company in the management or condition of its turntable,
the judge charged the jury:
"That to maintain the action it must appear by the evidence that
the turntable, in the condition, situation, and place where it then
was, was a dangerous machine, one which, if unguarded or unlocked,
would be likely to cause injury to children; that if in its
construction and the manner in which it was left it was not
dangerous in its nature, the defendants were not liable for
negligence; that they were further to consider whether, situated as
it was as the defendants' property in a small town, somewhat remote
from habitations, there was negligence in not anticipating that
injury might occur if it was left unlocked or unguarded; that if
they did not have reason to anticipate that children would be
likely to resort to it, or that they would be likely to be injured
if they did resort to it, then there was no negligence."
The jury found a verdict of $7,500 for the plaintiff, from the
judgment upon which this writ of error was brought.
Page 84 U. S. 660
MR. JUSTICE HUNT delivered the opinion of the Court.
1st. 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. [
Footnote 1]
But it is not necessary to pursue this subject. The record
expressly states that
"the counsel for the defendant disclaim resting their defense on
the ground that the plaintiff's parents were negligent, or that the
plaintiff (considering his tender age) was negligent, but rest
their defense on the ground that the company was not negligent, and
claim that the injury to the plaintiff was accidental or brought
upon himself."
This disclaimer ought to dispose of the question of the
plaintiff's negligence, whether made in a direct form, or
indirectly under the allegation that the plaintiff was a trespasser
upon the railroad premises, and therefore cannot recover.
A reference to some of the authorities on the last suggestion
may, however, be useful.
In the well known case of
Lynch v. Nurdin, [
Footnote 2] the child was clearly a
trespasser in climbing upon the cart, but was allowed to
recover.
In
Birge v. Gardner, [
Footnote 3] the same judgment was given and the same
principle was laid down. In most of the actions, indeed, brought to
recover for injuries to children, the position of the child was
that of a technical trespasser.
In
Daly v. Norwich and Worcester Railroad Company,
[
Footnote 4] it is
Page 84 U. S. 661
said the fact that the person was trespassing at the time is no
excuse, unless he thereby invited the act or his negligent conduct
contributed to it.
In
Bird v. Holbrook, [
Footnote 5] the plaintiff was injured by the spring guns
set in the defendant's grounds, and although the plaintiff was a
trespasser the defendant was held liable.
There are no doubt cases in which the contrary rule is laid
down. But we conceive the rule to be this: that while a railway
company is not bound to the same degree of care in regard to mere
strangers who are unlawfully upon its premises that it owes to
passengers conveyed by it, it is not exempt from responsibility to
such strangers for injuries arising from its negligence or from its
tortious acts.
2d. Was there negligence on the part of the railway company in
the management or condition of its turntable?
The charge on this point (
see supra, p.
84 U. S. 659)
was an impartial and intelligent one. Unless the defendant was
entitled to an order that the plaintiff be nonsuited, or, as it is
expressed in the practice of the United States courts, to an order
directing a verdict in its favor, the submission was right. If,
upon any construction which the jury was authorized to put upon the
evidence, or by any inferences they were authorized to draw from
it, the conclusion of negligence can be justified, the defendant
was not entitled to this order and the judgment cannot be
disturbed. To express it affirmatively, if from the evidence given
it might justly be inferred by the jury that the defendant, in the
construction, location, management, or condition of its machine had
omitted that care and attention to prevent the occurrence of
accidents which prudent and careful men ordinarily bestow, the jury
was at liberty to find for the plaintiff.
That the turntable was a dangerous machine, which would be
likely to cause injury to children who resorted to it, might fairly
be inferred from the injury which actually occurred
Page 84 U. S. 662
to the plaintiff. There was the same liability to injury to him,
and no greater, that existed with reference to all children. When
the jury learned from the evidence that he had suffered a serious
injury, by his foot being caught between the fixed rail of the
roadbed and the turning rail of the table they were justified in
believing that there was a probability of the occurrence of such
accidents.
So, in looking at the remoteness of the machine from inhabited
dwellings, when it was proved to the jury that several boys from
the hamlet were at play there on this occasion, and that they had
been at play upon the turntable on other occasions, and within the
observation and to the knowledge of the employees of the defendant,
the jury were justified in believing that children would probably
resort to it, and that the defendant should have anticipated that
such would be the case.
As it was in fact, on this occasion, so it was to be expected
that the amusement of the boys would have been found in turning
this table while they were on it or about it. This could certainly
have been prevented by locking the turntable when not in use by the
company. It was not shown that this would cause any considerable
expense or inconvenience to the defendant. It could probably have
been prevented by the repair of the broken latch. This was a heavy
catch which, by dropping into a socket, prevented the revolution of
the table. There had been one on this table weighing some eight or
ten pounds, but it had been broken off and had not been replaced.
It was proved to have been usual with railroad companies to have
upon their turntables a latch or bolt, or some similar instrument.
The jury may well have believed that if the defendant had incurred
the trifling expense of replacing this latch, and had taken the
slight trouble of putting it in its place, these very small boys
would not have taken the pains to lift it out, and thus the whole
difficulty have been avoided. Thus reasoning, the jury would have
reached the conclusion that the defendant had omitted the care and
attention it ought to have given, that it was negligent, and that
its negligence caused the injury
Page 84 U. S. 663
to the plaintiff. The evidence is not strong and the negligence
is slight, but we are not able to say that there is not evidence
sufficient to justify the verdict. We are not called upon to weigh,
to measure, to balance the evidence, or to ascertain how we should
have decided if acting as jurors. The charge was in all respects
sound and judicious, and there being sufficient evidence to justify
the finding, we are not authorized to disturb it.
3d. It is true, in many cases, that where the facts are
undisputed the effect of them is for the judgment of the court, and
not for the decision of the jury. This is true in that class of
cases where the existence of such facts come in question rather
than where deductions or inferences are to be made from the facts.
If a deed be given in evidence, a contract proven, or its breach
testified to, the existence of such deed, contract, or breach,
there being nothing in derogation of the evidence, is no doubt to
be ruled as a question of law. In some cases, too, the necessary
inference from the proof is so certain that it may be ruled as a
question of law. If a sane man voluntarily throws himself in
contract with a passing engine, there being nothing to counteract
the effect of this action, it may be ruled as a matter of law that
the injury to him resulted from his own fault, and that no action
can be sustained by him or his representatives. So if a coach
driver intentionally drives within a few inches of a precipice, and
an accident happens, negligence may be ruled as a question of law.
On the other hand, if he had placed a suitable distance between his
coach and the precipice, but by the breaking of a rein or an axle,
which could not have been anticipated, an injury occurred, it might
be ruled as a question of law that there was no negligence and no
liability. But these are extreme cases. The range between them is
almost infinite in variety and extent. It is in relation to these
intermediate cases that the opposite rule prevails. Upon the facts
proven in such cases, it is a matter of judgment and discretion, of
sound inference, what is the deduction to be drawn from the
undisputed facts. Certain facts we may suppose to be clearly
established from which one sensible,
Page 84 U. S. 664
impartial man would infer that proper care had not been used,
and that negligence existed; another man equally sensible and
equally impartial would infer that proper care had been used, and
that there was no negligence. It is this class of cases and those
akin to it that the law commits to the decision of a jury. Twelve
men of the average of the community, comprising men of education
and men of little education, men of learning and men whose learning
consists only in what they have themselves seen and heard, the
merchant, the mechanic, the farmer, the laborer; these sit
together, consult, apply their separate experience of the affairs
of life to the facts proven, and draw a unanimous conclusion. This
average judgment thus given it is the great effort of the law to
obtain. It is assumed that twelve men know more of the common
affairs of life than does one man, that they can draw wiser and
safer conclusions from admitted facts thus occurring than can a
single judge.
In no class of cases can this practical experience be more
wisely applied than in that we are considering. We find,
accordingly, although not uniform or harmonious, that the
authorities justify us in holding in the case before us, that
although the facts are undisputed it is for the jury and not for
the judge to determine whether proper care was given, or whether
they establish negligence.
In Redfield on the Law of Railways, [
Footnote 6] it is said:
"And what is proper care will be often a question of law, where
there is no controversy about the facts. But ordinarily, we
apprehend, where there is any testimony tending to show negligence,
it is a question for the jury. [
Footnote 7]"
In
Patterson v. Wall. [
Footnote 8] there was no controversy about the facts, but
only a question whether certain facts proved established negligence
on the one side, or rashness on the other. The judge at the trial
withdrew the case from the
Page 84 U. S. 665
jury, but it was held in the House of Lords to be a pure
question of fact for the jury, and the judgment was reversed.
In
Mangam v. Brooklyn Railroad, [
Footnote 9] the facts in relation to the conduct
of the child injured, the manner in which it was guarded, and how
it escaped from those having it in charge, were undisputed. The
judge at the trial ordered a nonsuit, holding that these facts
established negligence in those having the custody of the child.
The Court of Appeals of the state of New York held that the case
should have been submitted to the jury, and set aside the
nonsuit.
In
Detroit and W. R. Co. v. Van Steinberg, [
Footnote 10] the cases are largely
examined, and the rule laid down, that when the facts are disputed,
or when they are not disputed, but different minds might honestly
draw different conclusions from them, the case must be left to the
jury for their determination. [
Footnote 11]
It has been already shown that the facts proved justified the
jury in finding that the defendant was guilty of negligence, and we
are of the opinion that it was properly left to the jury to
determine that point.
Upon the whole case, the judgment must be
Affirmed.
[
Footnote 1]
Railroad Co. v.
Gladmon, 15 Wall. 401.
[
Footnote 2]
1 Adolphus & Ellis (new series) 29.
[
Footnote 3]
19 Conn. 507.
[
Footnote 4]
26
id. 591.
[
Footnote 5]
4 Bingham 628;
see also Loomis v. Terry, 17 Wendell
496;
Wright v. Ramscot, 1 Saunders 83;
Johnson v.
Patterson, 14 Conn. 1;
State v. Moore, 31
id. 479.
[
Footnote 6]
Vol. 2, p. 231.
[
Footnote 7]
Quimby v. Vermont Central Railroad, 23 Vt. 387;
Pfau v. Reynolds, 53 Ill. 212;
Patterson v.
Wallace, 1 McQueen's House of Lords Cases 748.
[
Footnote 8]
1 McQueen's House of Lords Cases 748.
[
Footnote 9]
38 New York (11 Tiffany) 455.
[
Footnote 10]
17 Mich. 99.
[
Footnote 11]
See, among other cases cited, the following:
Carsly
v. White, 21 Pickering 256;
Rindge v. Inhabitants of
Coleraine, 11 Gray 157;
Langhoff v. Milwaukee & P.
D.C., 19 Wis. 497;
Macon & Western Railroad v.
Davis, 13 Ga. 68;
Renwick v. New York Central
Railroad, 36 N.Y. 132.
