Givens v. Louisville & N. R. Co

however, is rigidly required to do all that care and prudence would dictate to avoid injury, and the greater the danger the greater the care that must be exercised to avoid it, and where, because of physical infirmities, darkness, snow, fog, the inclemency of the weather, buildings or other obstructions and hindrances, it is more than usually difficult to see or hear, greater precaution must be taken to avoid injury than would otherwise be necessary." If the box car upon the switch was in close proximity to the crossing, it was Barnhill's duty to have peered around its side cautiously before venturing onto the main track. Had he done this there was nothing to have prevented his observing the approaching train. To have stepped suddenly from behind a box car on the main track was the height of imprudence. Beach, Contrib. Neg. pp. 192, 193. A plaintiff who has contributed, proximately, to an injury cannot recover even if he succeeds in proving fault on the part of another. Schwartz v. Railroad Co., 30 La. Ann. 15; Murray v. Railroad Co., 31 La. Ann. 490; Weeks v. Railroad Co., 32 La. Ann. 615; Fleytas v. Railroad Co., 18 La. 339, 36 Am. Dec. 658; Carlisle v. Holton, 3 La. Ann. 48, 48 Am. Dec. 440; Murphy v. Diamond, Id. 441; Hubgh v. Railroad Co., 6 La. Ann. 496, 54 Am. Dec. 565; Hill v. Railroad Co., 11 La. Ann. 292; Knight v. Railroad Co., 23 La. Ann. 462; Laicher v. Railroad Co., 28 La. Ann. 320; Johnson v. Railroad Co., 27 La. Ann. 53; Damont v. Railroad Co., 9 La. Ann. 441, 61 Am. Dec. 214; Montfort v. Schmidt, 36 La. Ann. 750; Schofield v. Railway Co., 114 U. S. 615, 5 Sup. Ct. 1125, 29 L. Ed. 224; Vincent v. Steamship Co., 48 La. Ann. 933, 20 South. 207, 55 Am. St. Rep. 287; Provost v. Railroad Co., 52 La. Ann. 1894, 28 South. 305; Childs v. Railroad Co., 33 La. Ann. 154. "The correct principle," says Mr. Rorer in his work on Railroads (volume 11, pp. 1031-1033), "is, that a party cannot expose himself with impunity to injury from the possible negligence of another, and, if injury ensue, recover against the other for such injury." The familiar rule of law that one, who is suddenly placed in a dangerous situation. through the negligence of another, is not responsible for an error in judgment in selecting the wrong mode of escape, has no application here. Nor do we think the Sundmaker Case, 106 La. 111, 30 South. 285, relied on with so much confidence by plaintiff's counsel, is in point.

Judgment affirmed.

BREAUX, J., concurs in the decree.

GIVENS v. LOUISVILLE & N. R. Co.

(Court of Appeals of Kentucky, Feb. 27, 1903.)

[72 S. W. Rep. 320.]

Personal Injuries-Contributory Negligence.

Evidence examined in an action against a railroad for personal injuries, and held to justify a finding that the injuries resulted from

Givens v. Louisville & N. R. Co

plaintiff's contributory negligence, either in jumping on or off a train while in motion, or in sitting on a cross-tie while the train was approaching.

Presumption That Boy Seen Sitting on Cross-Tie Will Avoid Danger.*

If the engineer or fireman on a railroad train sees a boy sitting on a tie, he has the right to assume that he will get out of the way in time to avoid injury; and if the boy stumbles and falls in so doing, when it is too late to stop the train, injuries resulting to him cannot be charged to the railroad company.

Children-Contributory Negligence.t

Evidence in an action against a railroad for injuries to a boy seven years of age, showing that he is intelligent, that he has lived in proximity to the railroad, and was at the time of his injury acquainted with the movements of trains, and apprehensive of danger from them, is sufficient to show him capable of contributory negligence. Instructions.

An instruction, in an action against a railroad for personal injuries, that if plaintiff was seated at the end of a cross-tie while the train was approaching him, and those in charge of the train saw or should have seen him in time to have stopped the train before reaching him, but failed to do so, they should find for plaintiff, but if he was hurt while attempting to jump on or off the train while in motion they should find for defendant, though inaptly expressed, is not improper or prejudicial to plaintiff.

Same.

Refusal to give instructions which might properly have been given was not prejudicial when those given properly presented the only issues necessary to be determined by the jury.

Evidence-Contributory Negligence-Implied Admission.

In an action against a railroad for personal injuries, a declaration of plaintiff's brother, made immediately after plaintiff reached home after receiving his injuries, “Ah, ha! This is what you get from jumping on and of the train," to which plaintiff made no reply, was properly admitted in evidence as an implied admission.

Appeal from circuit court, Bell county. "Not to be officially reported.

Action by Edward Givens, by his father, as next friend, against the Louisville & Nashville Railroad Company. a judgment for defendant, plaintiff appeals. Affirmed.

N. B. Hays, for appellant.

From

C. W. Metcalf, J. W. Alcorn, and E. W. Hines, for appellee. SETTLE, J. This action was instituted in the name of the appellant, Edward Givens, by his father, as next friend, to recover damages for the loss of his foot, which was run over by the wheels of one of appellant's cars, and so mashed as to render its amputation necessary. The petition sets forth with unnecessary particularity the acts of negligence complained of in the following language, viz.: "Plaintiff says, at the time of receiving the injuries he was on the main line of defendant's road, and the train was going south said track, when plaintiff left said main line and *See foot-note appended to Humphreys' Adm'x v. Valley R. Co. (Va.), 5 R. R. R. 649, 28 Am. & Eng. R. Cas., N. S., 649.

on

†See foot-note appended to Ill. Cent. R. Co. v. Jernigan (Ill.), 5 R. R. R. 535, 28 Am. & Eng. R. Cas., N. S., 535.

Givens v. Louisville & N. R. Co

got on a siding or track running to the mines; that the defendant switched said train and engine just north of plaintiff on the line which plaintiff had moved to, and in plain view of plaintiff, and, without giving any warning by sounding the whistle or otherwise, negligently and carelessly struck plaintiff, bruising his leg as above stated." The answer not only traverses the averments of the petition, but, in addition, pleads contributory negligence, averring that appellant's injury was caused by his improper attempt to jump on the train while in motion. The reply simply denies The trial resulted

the affirmative allegations of the answer. in a verdict for appellee, and, a new trial having been refused appellant, he has brought the case to this court by appeal.

We deem it unnecessary to go into a detailed statement of the evidence, but think it sufficient to say that the evidence introduced by appellant conduces to show that as appellee's train which runs from Middlesboro to Mingo was leaving the former place, appellant, who was then a boy seven years of age, ran from the main track 40 feet to the belt line track, where he seated himself on the left-hand side of a cross-tie of the track, and when so seated that his back was toward the train; that he knew, before crossing over and taking his seat, that the train was in motion, but he heard no signal from either its bell or whistle as it approached. He did, however, give his attention to the train when it got near him, and when it came within 10 feet of him he jumped up to get out of its way, but in doing so struck his "sore" toe against a cinder about a foot from the end of the cross-ties and outside of the track, which caused him to stumble and fall, in doing which his foot and leg fell across the rail, and the foot was crushed by the wheels of the passing train. Upon the other hand, appellee's evidence was to the effect that appellant was not on the cross-tie or track in front of the engine, but that he and two other boys ran up to the side of the train while in motion, and jumped, or attempted to do so, upon the side of a car, but fell, and his foot was thereby caught and crushed. Two witnesses Logsden and Wood-testified that appellant told them he was walking or running along by the side of the train when hurt. Logsden carried him home immediately after he was injured, and upon reaching there appellant's brother said to him, "Ah, ha! This is what you get for jumping on and off the train. You know Pa and Ma have been telling you not to do that;" and that appellant made no reply to this statement of his brother. Shumate, fireman on the engine at the time of the accident, says he was looking out on the track in front of the engine, and saw no boy on the track, but saw some boys running towards the train. Appellant was asked on the trial, "Why did you sit down on the end of the tie on the track that leads to Mingo?" to which he answered: "I was tired. I thought the train was going on the main track, and sat down, and paid no attention to it." The evidence

Givens v. Louisville & N. R. Co

shows that the train was moving at the rate of four or five miles an hour, and that the noise of the cars and the engine could be heard at a distance of four or five hundred yards. So it seems to be reasonably apparent from the evidence that the boy's injury resulted from his own negligence; and, even if we were disinclined to believe the disinterested witnesses who say they saw him jumping on or swinging to the train, the boy's own statement shows that he saw the train when in 10 feet of him, and that he at once got off the tie and on his feet, and would have escaped injury but for stumping his "sore" toe on a cinder, which caused him to fall in such a way as to throw his foot over the rail, where it was caught by the wheel. Besides, if the engineer or fireman on the train saw him sitting on the tie, they had the right to assume that he would get out of the way of the approaching train in time to avoid injury; and the boy, in leaving the place where he was seated, did the very thing that the engineer had the right to expect of him, and, having gotten up and started away from the place of danger, the engineer had no reason to know, and could not have anticipated, that he would strike his toe against a cinder, and by reason thereof fall with his foot on the track; nor would it have been possible to stop the train, after the fall, in time to have prevented the injuries. We are aware of the rule so repeatedly announced by this and other courts of last resort that no presumption of negligence is to be indulged as against a child of tender years; but this boy seems to be intelligent, and, besides, it is shown by the evidence that he lives in close proximity to the railroad, and was at the time of receiving the injury familiar with the movements of the train on appellee's road. We think it does no violence to his youth to say that he was possessed of sufficient discretion to know the danger in which he voluntarily placed himself by taking a seat on the cross-tie near a moving train; and, indeed, he manifested his appreciation of the danger by trying to get out of the way of the train as it approached him, which he would have succeeded in doing but for striking his toe against the cinder. So, upon all of the evidence, we are unable to say that the verdict of the jury was unauthorized. The alleged errors in reference to the giving and refusing of instructions might, and perhaps should, be refused consideration, because the instructions are not properly incorporated in the bill of exceptions; but we have, nevertheless, considered them, and find that, though inaptly expressed, they were not improper or prejudicial to the appellant. They told the jury, in substance, that if they believed from the evidence that if the appellant, Edward Givens, was seated on the end of the cross-tie while appellee's engine was approaching, and that those in charge of the train saw, or by the exercise of reasonable care ought to have seen, him, in time to have stopped the train before the engine reached him, but failed to do so, they should find for appellant. But upon the other

Rueping v. Chicago, etc., Ry. Co

hand, if they believed from the evidence that he was hurt from having his foot caught under a wheel of the train while. he was attempting to jump on or off the train while in motion, they should find for appellee. While one, or perhaps more, of the instructions asked for by appellant and refused by the court might with propriety have been given, we do not think the refusal of the court to give them was prejudicial to appellant, as those given presented the only issues of fact necessary to be determined by the jury.

Counsel for appellant complain of the action of the lower court in admitting as evidence the declarations of appellant's brother, made to him when he reached home just after receiving his injuries. The brother said, "Ah, ha! This is what you get from jumping on and off the train. You know that Pa and Ma have been telling you not to do that"--to which appellant made no reply. We would ordinarily attach very little importance to the silence of appellant under such circumstances, as he was doubtless suffering greatly from the wounded condition of his foot; but the statements of the brother were of a character to call for some explanation or protest, and the failure of the appellant to reply would seem to indicate that he was unable to deny the charge made by the brother. In order to affect a party with the statements of others, made in his presence or hearing, concerning any act or declaration of his, and the truth of which he impliedly admits by a failure to deny it, the statement must have been made under such circumstances as would reasonably or naturally call for some reply from any person similarly situated. Ist Greenleaf on Evidence, section 197. In view of the rule stated, and the testimony of several of the witnesses that they saw him swinging on the train when injured, we are of the opinion that the lower court did not err in admitting the evidence in question.

Finding no error in the record prejudicial to the appellant, the judgment of the lower court is affirmed.

RUEPING V. CHICAGO & N. W. Ry. Co.

(Supreme Court of Wisconsin, Feb. 24, 1903.)

[93 N. W. Rep. 843.]

Wrongful Act of Servant-Punitive Damages.*

A principal is not liable for punitive damages unless he directed the wrongful act to be done, or subsequently affirmed it, whether the negligence of the servant be ordinary or gross.

Same-Actionable and Gross Negligence-Evidence.

Where actionable negligence is admitted, and there can be no punitive damages, because the principal did not direct or affirm the wrongful act of the servant, and there is no mental suffering, induced by

*See Proctor v. Southern Ry. Co. (S. Car.), 22 Am. & Eng. R. Cas., N. S., 426, and note, 440.