The record-union., 1891-02-07

iioC tuoutiu upon IL, iHNOiNlIS u i1Sh VI
her getting injured, was the result more
than anything else of desire TO have the
chlld's society by the son, and of a dis
position by both father and son to be in
dulgent to her; but these motives, COM
mendable as they may be in the abstract,
cannot excuse them from exercising such
care as the law requires TO prevent the
little girl from placing herself in danger
and getting MANNED for life.
we do not, therefore, think the verdict
unsupported by evidence.
1t is further claimed that the instruc
tons asked for and granted were errone-
ous- One of them (T. fols. I25-l26) is:
The court instructS You that q child of
such tender years and immature judg
Inent as to be incapable of knowing, COM
pretending and measuring the danger to
which II is exposed, and of exercising the
necessary precaution in guarding against
1t, cannot be charged with negligence in
exposing itself TO the threatened danger.
In determining this proposition in con-
nectlon with this case, you must consider
the age, sex, and all the conditions sur
rounding the plaintiff at the date of the
injury, as disclosed to you by the evil
dence.''
We do not understand this instruction
to say 10 the jury. as defendants contend
that the court instructed the jury, that the
machinery by which the plaintiff received
her injury was dangerous. For, whether
the danger to the child existed or not,
they were told it was ''as the evidence
disclosed it," That is, existed or not as
the evidence disclosed. There was moth
ing misleading in telling the jury that
| they were to consider all the conditions
surrounding the plaintiff, including her
age and sex, in determining from the evil
dence as to the danger she may have been
exposed to, and her appreciation of it, as
| bearing upon the question of contributory
| negligence.
| An objection is also made to an instruc-
| ton, at folio l27 OF the transcript. that the
/ jury are instructed that if the plaintiff was
! in peril under certain circUmstanceHit
would be evidence Of negligence, thus, rs
is claimed, telling the jury that the injury
while riding on the sweep was of itself
evidence of negligence. The instruction
is:
''If you shall find from the evidence
that at the date of the alleged injury, the
sweep referred to, III its relation to the
machinery, was a dangerous place for the
plaintiff to ride, and shall find that while
the defendants were using said machin-
cry, and the defendants had reason to
| know the same was dangerous, and they
knowingly permitted the plaintiff to sit
upon and ride said sweep, in dangerous
proximity to said machinery, her parents
or other guardians not being present, and
you shall further find that because of the
tender years and immature judgment of
the plaintiff she was incapable of compre-
hending and guarding against the danger
| to which she was thereby exposed and
you shall further find that while she was
riding under the conditions and circum-
stances stated. plaintiffs hand was caught
| and injured in and by said machinery,
that it would be evidence of negligence"
As we understand the instruction. il in
forms the jury that if certain state of
facts exists, eliminating in PLAINTIFF
injury such stale Of facts is evidence of
negligence. We do not see that the clause
objected to, in view of all the other pcr-
lions of the instruction, and others given,
would tend to nlislead the jury as COM
planned Of
Objection is also made to this instruc-
ton:
''And finding the facts as above stated,
you should further find from the evidence
that defendants were father and son, and
that the son, while working the machin-
| cry for the father, invited, requested, in
duced or permitted the plaintiff to ride
on said sweep, and that the father knew
of her so riding, or had reason to know it
was dangerous, and could have removed
her, or caused her to be removed, there
! from, or could have stopped said machin-
cry, or caused the same to be stopped,
and did neither, but, on the contrary,
both he and the son suffered her to re-
main, such facts would show negligence
on the part of the defendants"
1t is said that in this instruction it is
not clearly stated how the jury were to
determine as to the fathers responsible
ity. @
That the jury might have been inn
pressed with the; idea that the father was
responsible for the son as his servant in
viting the plaintiff to ride.
But we do not so understand the in
struction. The first part of it is with
reference to the state of facts under which
it appeared in evidence that the son in
vited, permitted and induced the plaintiff
to ride under circumstances of danger to
her. The second, that the father, daCdre
of the danger into which she had been
placed by the conduct of the son, had yet
permitted her to remain there thus ex-
posed, when he could have prevented her.
The jury were correctly told that if the
state of facts with reference to each, some
what different, existed, that they were
both responsible. But we do not under
stand that they are told that either is re-
sponsible for the negligence of the other.
We perceive no prejudicial error, and
advise that the Judgment end order be
affirmed. FooTE, G.
We concur:
VAN CLIEF, c.,
BELCHER, c.