Anderson v. Central Railroad

The opinion of the court was delivered by Magits, Chancellor.

The judgment brought up by this writ of error was entered in an action, brought by the administrator of a deceased person, to recover damages, in favor of his next of kin, upon a claim that the death of the deceased had been occasioned by the actionable negligence of the defendant company.

The bill of exceptions discloses that a verdict in favor .of the defendant was directed by the trial judge, and the sole question presented on this argument is whether the trial judge erred in such direction. This question will be solved by determining whether the evidence, viewed in the aspect most favorable to the plaintiff, would have supported any other verdict than that which was directed. Crue v. Caldwell, 23 Vroom 215 ; Newark Passenger Railway Co. v. Block, 26 Id. 605; Myers v. Birch, 30 Id. 238; American Saw Co. v. First National Bank, 31 Id. 417; Coyle v. Griffing Iron Co., 34 Id. 609; Lippincott v. Royal Arcanum, 35 Id. 309.

*271 The deceased person was an intelligent boy, within a few weeks of nine years old. It was shown that he came to his death by being struck by a railroad train of the defendant company, running at great speed, and there was evidence that the collision took place at a point within a highway which > crossed the railroad at grade. The boy was familiar with the crossing.

The evidence disclosed that a train moving in an opposite direction from the train which collided with the deceased had passed upon the south-bound track, but it clearly established the fact that the train had passed so long before the approach of the train which killed deceased that the doctrine announced in New Jersey Railroad and Transportation Co. ads. West, 3 Vroom 91 ; S. C., 4 Id. 430, is not applicable, and there is no occasion to inquire whether the doctrine of that case has not been limited or modified, or even repudiated.

The evidence, with the maps and photographs produced, showed, beyond any, possible doubt, that a person approaching the crossing in the direction deceased was moving had, for a distance of at least fifty feet from the track on which the collision took place, a clear view for a long distance. There was nothing to obstruct the vision, and observation made at any point before deceased reached that' track would have disclosed the approaching train. If deceased had been an adult, there can be no possible question but that his failure to discover the train which was approaching, and within the range of his vision, would have established the fact that he did not make the observation which duty for his safety required. It would make out contributory negligence, and justify the direction of a verdict. Pennsylvania Railroad Co. v. Righter, 13 Vroom 180 .

The duty of taking care for one’s personal safety, when in a place known to be dangerous, is imposed upon all minors who are sid juris, as well as upon all adults. The degree of care for personal safety exacted from adults may, and doubtless does, differ from that exacted from minors. The latter lack experience and are of immature judgment. Such deficiencies will be most observable in infants of tender years, *272 and may well be considered in determining whether they have exercised due care for safety. As infants increase in years, and as they approach majority, such deficiencies will be of less weight. Where they tend to characterize the infant’s acts, as being prudent or imprudent, the question presented is usually a jury questiop.

But when the act of an infant, exposes him to a personal peril which he must recognize and appreciate, and when his personal safety may be secured by means indicated by the most immature judgment, his exposure of himself to the peril, without any precaution, will leave no question for a jury.

The infant in this case was shown to have been in the constant and daily practice of crossing the tracks of the defendant company, and so acquired experience of the running of .trains across the public highways at great speed, and in a mode which would peril the safety of anyone who stepped upon the track in front of them. No judgment more mature than his was required to show him that safety in the place of known peril was to be obtained by observing whether or not a train was approaching the highway on which he was moving, and to abstain from crossing in front of an approaching train. When, therefore, the evidence clearly establishes that, although there was nothing to distract him from observation, nor any physical obstacle to effective observation, deceased walked upon the track in front of the swiftly-moving train, which observation would have disclosed to him, I feel bound to conclude that deceased is thereby shown to have been guilty of negligence contributing to his death, and that no verdict to the contrary could be supported. It was not erroneous, therefore, to direct a verdict.

For affirmance—Ti-ie Chancellor, Chief Justice, Fort, Garretson, Hendrickson, Pitney, Bogert, Vredenburgh, Voori-iees. 9. For reversal—Dixon, Collins, Adams, Yroom. 4.