RAILROADS — INFANT—NEGLIGENCE.

[Lorain Circuit Court,

October 20, 1894.]

Caldwell, Baldwin and Hale, JJ.

#### †L. S. & M. S. Ry. Co. v. A. B. Orvis.

1. The Care Required oe a Railway Company at a Crossing is Measured by the Hazard There.

The care and prudence required of a railroad company to protect persons passing along the street, at a crossing of the highway, is measured by the hazard that attends the transaction of business at that point.

2. The Duty oe a Child to Look out eor Cars is not that oe an Adult.

The duty of a child standing on a street at a railway crossing, to look out for approaching cars, is not the same as that of a mature person.

3. A Railroad Company Must Exercise Ordinary Care to Protect Even Trespassers.

A railroad company is bound to exercise ordinary care to protect persons on their tracks, notwithstanding that they may be .trespassers.

4. The Father, at Common Law, Has no Right oe Action eor Death oe his Son.

The father, at common law, has no right of action against one causing the death of his son by negligence.

†

This judgment was affirmed by the Supreme Court, without report, October 29, 1895 ; 53 O. S., 665.

Caldwell, J.

(orally.)

Charles Orvis was killed by being run over by the cars of the plaintiff in error, at the’ point where the railroad crosses a street in Elyria. A. B. Orvis was appointed administrator, and brings this action, in which he avers that this accident was caused by the carelessness and negligence of the railroad and its employees, in that there was not sufficient protection given this child at this *453crossing; in that there was no proper service at that time by way of giving him notice of danger by means of a flagman at that place; and in the next place there was no person on top of the car that did the killing to give any notice to a person on the track. The decedent was a child almost eight years old. The circumstances were these. I might say before stating the circumstances, that the railroad company makes a few admissions, but denies principally all the allegations of the petition, especially the charge of negligence I have spoken of. It seems that at this point where this accident occurred there are three tracks of the railroad company; two of them, the two south tracks, are used for cars to pass upon, the other one leads to the freight house, and over which trains are not usually run, but cars are passed over there at different times and on different occasions, as it may be necessary to unload there, or for other purposes.

On this occasion an engine having some cars attached to it passed in upon this track and switched a little east of this crossing and a little east of the freight house of the plaintiff in error, and there were cars standing on- the track and as the engine and the cars approached these cars they shoved them along ahead of them, and these cars being thus shoved passed over this highway, and this child was upon the track upon which these cars were being pushed, and he was hit by the car and thrown down and killed. It is claimed as an act of negligence, that he got no notice in fact from the flagman, who it appears was there at his place, and that no one was on the top of these cars that were advancing, or upon the front car as they were shoved along to give any notice or any warning of danger. The matter that made the flagman, as was claimed, of no account in this case, was the fact that he was on the south side of all these tracks and, at the time, this accident occurred on the north main track. There was passing towards the east and from the west a long train of freight cars, and they entirely obscured, or nearly so, the view of the flagman from any one approaching this crossing from the north, and that being the case, the flagman so far as giving any warning to this child was of no consequence whatever, and it is alleged to be a ground of neglect and careless management of the passing of these trains over that crossing; that being so it became necessary, if cars were being passed west at the same time this other train was passing east, that greater caution should be observed in the management-of the train that was passing to the west. There being no one on the car, the front car of that train, the accident was caused by the negligence of the company. It is said on behalf of the railroad company that this child was guilty of contributor negligence, and that his death was caused, at least in part, by his own negligence, and that being the case there can be no •recovery here. The case was tried, and comes to us on error with a bill of exceptions, setting out all the testimony. It is claimed in the first place, that the conclusion of the jury was not correct, both as to finding negligence against the L. S. & M. S. Ry. Co., and also in finding that this child was not guilty of negligence that contributed to his own injury.

We have examined the testimony so far as this question is concerned somewhat in detail, and while the testimony is conflicting as to whether there was any one upon the car,where it is claimed a man should have been, upon this car that was passing to the west, and while it is conflicting as to whether the person who got on that car, or got on the cars, whether that car or some other is also in conflict, and whether he got on the car in time to see this child before he was killed, if he had looked, is somewhat in dispute, and as to whether, when he got on the car, he looked in that direction where the child was, is in conflict also. These matters being somewhat controverted in the testimony, we are unable to say that there was any error on the part of the jury in finding that the railroad company was guilty of negligence.

As to the child, it is claimed that he was given some money by his mother (he lived north of this' crossing, or he was staying north of this crossing with a sister of hers,) and that he started over town on an errand, or for some purpose; that when he approached this crossing this freight train going to the east was *454passing over the crossing, or about to pass, and no one knows exactly when he approached that crossing. It does not appear from the testimony. The first thing that is seen of this child by any one he was upon the north track at that crossing, and perhaps a little west of the sidewalk — a foot or so off of the street * — a little west of the west line of the street as it crosses the railroad track at that point. He seemed to be bending over with his face to the west and his back to the cars that were'approaching him. At that moment he did not seem to be looking in the direction of the cars that killed him. He was picking up pebbles, according to some of the testimony. And there is some testimony to show that he was throwing the pebbles under the train that was passing.

It is claimed that the testimony shows that he was not looking in the direction from which the cars came that caused his death. That being so, and having been seen there for some seconds before he was killed, by the flagman who undertook to warn him of his danger, it is claimed that he was guilty of contributor}negligence, and that the jury, in finding that there was no contributory negligence, as they must have found under the charge of the court, in order to find the verdict against the railroad company, were clearly wrong, and that the finding was not warranted by the evidence. Now, it is true that all the testimomthat locales this child locates him upon the track, perhaps between the rails and a little west of the street line, and with his back towards the cars that were approaching him; picking up pebbles, or at least bending over with his face to the west, and with his back towards these cars. And the question was at once raised whether he was- exercising that caution that a child of his years should have exercised, or would ordinarily have exercised. The matter was left to the jury, and the jury have found that there was no contributory negligence, and we do not feel warranted, under the law as it pertains to a child of these years, in finding there was any contributory negligence. The fact is, the child was not seen until just a moment or so before he was killed, by any one, except the flagman, and the flagman’s view must have been necessarily very indistinct, because of the freight train that was passing to the east. It was passing at the rate of ten, twelve or fourteen miles an hour, according to the testimony, and the flagman got a view of this child only as he got a glimpse of him between the cars, which was a mere glimpse, without any distinct view. No one has been able to ■say that this child, when he approached that place, looked carefully before going upon the track. It is not known whether at the time he got there these cars had •commenced to move. It is well known that cars are frequently standing upon this track in front of the freight house without moving, and this child was more •or less familiar with that fact. What precautions were taken by him are unknown and untestified to in this case. And it would be a little hard to say that a child of these tender years, if, when he approached this crossing, looked and saw no cars moving, that it would necessarily be negligence for a child ol these years to pass upon that track; and he got no warning after that that any cars were approaching over that track, and taking all these facts together, the situation, circumstances, and when this lad was seen and for the few moments that he was seen by any one distinctly, we cannot say that this jury erred in arriving at the conclusion it did upon that branch of the case.

Now, it is claimed there were a number of serious mistakes in the trial of this case for which it should be reversed. In the first place, it is claimed that the charge is unfair in the manner in which it states the case to the jury; that it was very prejudicial to the plaintiff in error, and for that reason should be reversed. For instance, it is claimed that the court obscured every question affecting the plaintiff’s contributory negligence, and made prominent every question that would make the defendant liable. The great question that the court kept holding prominently before the jury all the way through the charge, it is claimed, was the negligence of the defendant. And in so doing, the court charged that in passing over this street with these cars, the company should exercise great caution.

*455It is claimed that this term “great caution” was an error, that the measure of caution was that of ordinary care; that is, such care as is required under such circumstances, and that for the court to say that great caution should be used at that point was an error. Now, we find in looking at the charge, that the court had been saying to the juiy that the railroad company was bound to exercise ordinary care and prudence in the transacting of its business in passing over this highway, and then went on and explained to the jury that ordinary care was measured by the hazard, by the danger that attended the transaction of the business. That ordinary care at one point of their road might be very much less than ordinary care at another. The court was speaking of this road and the danger there was to persons along the street,.and having the right to pass along the street, and the railroad at the same time passing its cars over the same, and called the attention of the jury at the time this was being done to the fact that the view of any one approaching from the north could not be aided by the flagman, and there was nothing to warn any one of the danger upon the north track. Taking all this into consideration, the court did charge that the railroad company should exercise great caution, and we think that was not out of place, any more than if he should have said they should exercise great eare, because there were hazards attending the circumstances. It is said that in further misleading the jury he charged in such a way that the charge was misleading and prejudicial to the plaintiff in error. It is said that the court urged this question prominently in the charge, “could that accident have been prevented if a person had stood on the front end of that car to have observed the approach of persons in front of the same?”

Again, the court in another place charged the same thing, asking almost precisely the same question, and it is claimed that the court turned the j ury’s attention almost entirely to the question, “Could this have happened if any one had been on the car in the place where someone should have been?” In another place it is said, “Did or did not a person stand on the front of that car,” and never once saying to the jury, “Did or did not this child look to see if a train was approaching? Could this accident have happened had that child looked to the west to see whether danger was approaching him, when he was standing upon the railroad track?” In all this the court is directing the jury to the negligence charged and the manner in which they shall weigh the testimony, and determine whether or not there was negligence on the part oi the railway company, and while he does not state the same question in regard to the child, yet it is not denied but that the law he gave in regard to the child, in regard to the responsibility of the child, and whether or not he was negligent, was correctly stated in the charge.

The facts were, no one saw the child when he approached. If the child had stood there looking to the east all the while, undoubtedly he would have seen these cars when they approached him, and no one knows but that this child when he approached the track looked to see if the cars were approaching. We cannot see that the court was so unfair in this charge that we should now say after this trial that there was unfairness in the charge, and especially should we not say that the court was so unfair that this verdict should now be reversed. Now, it is complained that the court erred in its requests; that the plaintiff in error made certain requests which should have been given in this case and were not.

On page 257 of the record, this request was asked: “It was the duty of the decedent, when approaching or standing upon the railroad where cars were being run, to look out for the approaching cars, and if you find he failed to do so, without a reasonable excuse therefor, he was guilty of such negligence as will prevent the plaintiff from recovering in this case.”

Now, here, just what is the duty of the child, is the question. Had it been an adult, thére would be no question. But it is not known in this case, but that the child did look. He was only seen here by any one distinctly for a *moment,**456and for that moment his face was turned to the west. If he had been looking in the other direction just a short time before, and these cars were not then moving but were standing still where they were, and then had turned his face to the west for a moment only, or for a few moments, it would have been entirely wrong for the court to charge that if he was looking to the westward for those few moments, although he was looking a moment before in the direction of the cars and did not see them, it would be negligence. Under the peculiar facts of this case we think the court would not have been warranted in giving that request, although it was good law when appliecl to adults.

The next request which was refused was: “If you find that the decedent approached this crossing or stood thereon without looking out for approaching cars, he was *prima- facie*guilty of such negligence as will prevent a recovery by the plaintiff in this case, for injuries occasioned to decedent while so approaching or standin'g upon said crossing, from the mere carelessness of the employees of the company, and this presumption of negligence can only be rebutted by facts and circumstances showing that it was not reasonably practicable for decedent to make or keep such lookout, or such facts and circumstances as would ordinarily induce persons of common prudence to omit such precaution.”

Now, there is one trouble with all these requests —they none of them take into consideration the age of this child. There are many of them which are good law, if you apply them to an adult. But suppose no one had seen this child there at all and this request had been asked, the court would certainly have been justified in refusing it, as there were no facts from which the jury could come to the conclusion. Now, if the child was only seen for a moment, it was not known how long he had been there, except that his mother thinks it was a very short time between the time he left the house and the time he was brought back. No observation was had of this child but for an instant before he was killed. I think, I am justified in saying but for an instant, and all the rest of the time that child was there no one saw him. When he approached no one knows, what he did no one knows, and it is improper to submit the question to the jury to say that after having approached that crossing he stood thereon without looking out for approaching cars, because there is no testimony to determine-whether he approached the crossing or not without looking out for the cars. It would be asking the jury to determine a question upon which there was no testimony. Another request was: “It was the duty of the decedent when approaching or standing upon the crossing where he was injured, to use ordinary care in the use of his senses to ascertain if there was a train in the vicinity liable to pass ov'er said crossing, and if he neglected to so use his senses, and by reason of such negligence was injured, he was guilty of such contributory negligence as would prevent a recovery in this case.”

That follows exactly under tíre same reasons as given in the two last. Another request was: “It was the duty of the decedent, when approaching the crossing, to use ordinary care.” There is no testimony but that he did. There is no testimony one way or the other upon the question. That being the case, the court was justified in refusing to submit to the jury the question that was not in the case at all. There was no testimony bearing upon that question from which the jury should determine.

Another request was: “If you find that at the time of the accident the decedent was west of the highway upon the right of way of the railroad company, picking up stones, or using the track as a playground, and while so engaged he received the injury set forth in the petition from the mere carelessness of the defendant, your verdict should be for the defendant.” This is the same law that was charged and in almost the same words, that was charged in the case of *Canfield*v. *Railway Co.*in a case tried in Cuyahoga county. It was reversed by the district court, and the reversal affirmed by the Supreme Court, and the law was laid down in that case by the Supreme Court that that was not the law. It is not the law that if a party is a trespasser upon a railroad track at a point where *457there is no crossing,that is, suppose this child had gone on some place out in the field, instead of the highway, that then he cannot complain if he is injured by the negligence of the company.

It will appear that the railroad company is not bound to take all the precaution that it would take at the street crossing, but is bound to exercise ordinary care to protect such persons under the'circumstances of the place. And when it sees or might have seen by the exercise of such care, an individual upon' the track, it is then bound to use all the means that it can, to prevent any injury to the person upon the track, and if the person is injured by any neglect to use such means, the person injured can recover, if not guilty of contributory negligence.

Another request was: “If you find that at the time of the accident to the decedent he was upon the defendant’s right of way, outside of the limits of the highway, engaged in picking up stones for his amusement, or otherwise using the same as a playground, without any permission from the defendant company to so occupjr the same, he was a trespasser upon the grounds of the company, and if while so engaged he received the injury set forth in the petition from the mere carelessness of the defendant, the plaintiff cannot recover in this case, and your verdict should be for the defendant.”

It is argued by counsel for plaintiff in error, that the father of .the deceased has a right to sue for and recover the value of the services of his child up to the time he would be twenty-one years of age had he lived, if he was killed by the negligence of plaintiff, and hence it is error to allow the plaintiff below to recover for such period; for the father may also sue and thus the railroad may be compelled to pay twice; that the statute does not undertake to take away the father’s right; hence in a case like this the representative can recover for only the period not covered by the father’s right.

This proposition assumes that the father at common law has an action against one causing the death-of his son by negligence. This is not the law. The common law gives no such right of action. Cooley on Torts, 14, 262; 2 Thompson on Negligence, 1272; Sedg., Meas, of Dam., 7th ed., 533 and note; Sutherland on Damages, 281; 1 Handy, 481; *Schneider*v. Hosier, 21 O. S., 98-110; In*s. Co.*v. Brame, 95 U. S., 757; *Dermick*v. *R. R. Co.,*113 U. S., 11; *Wyatt*v. *Williams,*43 N. H., 102; *Telfer*v. *R. R. Co.,*30 N. J. L., 109; *Whitford*v. *R. R. Co.,*23 N. Y., 478; *R. R.*v. *Bowman,*66 Pa. St., 393; *Worley*v. *R. R. Co.*

There are some decisions to the contrary, but they are against the weight of authority.

We find no error in the record and we affirm the judgment.