Brennan v. Fair Haven & Westville Railroad

Carpenter, J.

The plaintiff at the time of the accident was ten years old. He was riding on one of the defendants’ cars with the knowledge and consent of the conductor and driver, but without paying fare. He was requested by the driver to take a package of newspapers, which was being carried upon the car, and leave it at the post office in Fair Haven, where the boy intended to get off. He took the papers, and without notice to the conductor or driver, and while the car was in motion, before reaching the crossing where the car usually stopped, stepped off at the forward end of the car, and in doing so was thrown under the wheel and received the injury complained of. The managers of the car had ho authority to carry passengers free. A notice was conspicuously posted in the car, printed in large letters, forbidding passengers, among other things — “ 1. To get on or off, or to occupy the forward platform.” * * “3. To stand on the steps, or get on or off the cars when in motion.” And at the close was the following: — “The company will not be responsible for any accident occurring under a violation of any of the above rules.”

The court found, “that this injury was the result of the careless and negligent driving and management of the car by the defendants’ driver and conductor of the same. The plaintiff in getting off the car, under the circumstances, used as much care, caution and prudence as could be expected from a person of his age, and no contributory negligence on his part is found to have been proven.”

The court rendered judgment for the plaintiff, and the defendants moved for a new trial.

Before considering the main question in the case we will briefly notice the objections to evidence.

To the evidence offered by the plaintiff to show that he was permitted to ride on the car by the driver and conductor, the defendants objected, “upon the ground that neither the driver nor conductor had power to give the plaintiff a free *296 ride, and the driver had nothing to do with persons on the car; that neither was an agent of the defendants for any such purpose.”

We' think this objection is not well taken. The defendants’ car was managed and directed by the conductor and driver. It was within the scope of their authority to receive passengers on the car and let them off. Their action was the action of the company. The defendants therefore received the plaintiff as a passenger. This fact cannot be affected by the omission of the conductor to collect fare. Moreover the matter thus proved was a part of the res gestee; it shows the time and manner of the accident and the circumstances attending it.

The plaintiff, for the purpose of showing that he was not a trespasser on the car, but was there by the knowledge and permission of the defendants, and to show that the driver knew that the plaintiff intended to get off at the post office, and was negligent and careless in the management of his team, and in driving the car, and in not stopping for the plaintiff to get off, offered evidence that the driver requested the plaintiff to take a package of newspapers then on the platform, and deliver it at the post office; and that while the plaintiff was getting off the car with the package he was injured. This evidence was objected to on the ground that the driver was not the agent of the defendants for the purpose of leaving papers at the post office, or requesting or employing the plaintiff to do so.

We think this evidence was admissible for some or all of the purposes for which it was offered. It seems that the defendants were accustomed to carry packages and parcels on their car, and that both the conductor and driver had some duty to perform in respect to them. Admitting it to be true, as the objection assumes, that the driver was not authorized to leave the papers at the post office, or to employ the plaintiff . to do so, still the evidence was admissible to show that the driver knew that the plaintiff was on the car, and was intending to get off at the post office; and we think that such knowledge has some bearing upon the question of negligence.

*297 The objection that requesting the plaintiff to take charge of the papers constituted him an employee of the defendants, if true, is hardly a reason for excluding the testimony. It was still admissible for the purposes for which it was offered. But we do not consider that the plaintiff was in any sense an employee of the defendants. He was merely requested, as any other passenger might have been, as a friendly act, to deliver the papers. That did not constitute the relation of master and servant.

The objection that the declaration avers no negligence “in not stopping the car” cannot avail the defendants. It is alleged that the defendants “ so cai’elessly, negligently and unskillfu'lly managed and directed said car as to run said car upon and over the plaintiff.” That is certainly broad enough to admit proof that the negligence consisted in part in not stopping the car at a proper time.

We now come to the principal and most important question in the case — the claim of the defendants that the facts found show, as matter of law, that the defendants were guilty of no negligence, and that the plaintiff was guilty of contributory negligence; and that the finding to the contrary by the Superior Court should under the circumstances be disregarded.

If the finding of negligence on the one hand and of due care on the other was merely a conclusion of law from the facts stated, then this would have been a legitimate question for us to consider. If on the contrary negligence and due care are simply questions of fact, then the case is placed beyond our reach by the finding.

Negligence is ordinarily a question of fact and has been so considered by this court. Sometimes however it has been treated as a mixed question of law and fact, especially in cases reserved, and the questions raised have been heard and determined. We think it must be regarded as a question of fact here. If however it were to be considered as a mixed question of law and fact, we should even then find it difficult upon any recognized principles to disturb the judgment.

If it be admitted that the plaintiff was a trespasser on the defendants’ car his right of action is not necessarily thereby *298 defeated. But it is unnecessary to discuss this question, as we think he can hardly be viewed in the light of a trespasser. He was rightfully on the car — was there by the consent of the defendants’ servants. They had a right to collect fare, and as between themselves and their employers it was their duty to do so. Their neglect of this duty did not make him a trespasser, and did not relieve them of the obligation to use reasonable care not to injure him.

In the facts as they appear there is some evidence of negligence. Negligence is a relative term. Conduct which might be negligent at one time or in respect to one person, might not be at another time or in respect to another person. Much necessarily depends upon the condition and circumstances of the parties. If the plaintiff had been an adult perhaps the notice posted at each end of the car, forbidding passengers to get on or off the forward platform or while the cars were in motion, and that the company would'not be responsible for accidents occurring in consequence of any violation of these rules, would have been all that would have been required of them. There is room for the presumption that he could read the notice, and that he did read it, and that he had sufficient judgment and discretion to heed it. But the case before us is that of a mere child. He may or may not have read the notice.. If he read it he may not have comprehended it. If he comprehended it the thoughtlessness of childhood may have caused him immediately to forget it and consequently to disregard it. Under these circumstances there was some obligation resting upon the driver and conductor to see that these rules were complied with.

It is perfectly natural for a boy of that age, if allowed to do as he pleases, to disregard such rules. Some restraining authority seems to have been called for in this case and none was exercised. Thus it would seem that there may have been negligence in managing and directing the car in respect to this boy, while the same circumstances in respect to a person of mature years would not constitute negligence. An adult might have stepped off the car with impunity, and the driver might properly have allowed Mm to judge and act for Mm- *299 self. Not so with this boy. He knew he was on the front platform in violation of the rule. Had he enforced the rule and sent him inside the car probably the accident would not have happened. He knew also that the boy intended to get off the car. If, instead of sending him inside, he had allowed him to get off but had restrained him until he had stopped the car, then there would have been no accident. So too if the conductor had looked after the plaintiff he might easily have been kept within the rules and the accident have been prevented.

These remarks are applicable to some extent to the other branch of the case — due care on the part of the plaintiff. It is found that he “ used as much care, caution and prudence as could be expected from a person of his age.” Conduct which might ordinarily be expected from such a boy might be negligence in an older person.

But whether the court erred in arriving at conclusions of fact is immaterial. We are unable to see that it erred in the application of legal principles.

A new trial must be denied.

In this opinion the other judges concurred.