machinery where it is accessible to them, although it would not, under the same circumstances, be liable to an adult. Thus, where it leaves upon its unenclosed premises a turn-table, unfastened and unguarded, it has been held that the temptation which it thus offers to the natural instincts of children is equivalent to an invitation and allurement, and it is liable for injuries resulting from its want of ordinary care in preventing their access to such machinery; and the same rule has been applied where it left an excavation in the highway unguarded. It is not, however, liable for injuries to boys caused by their meddling with a turn-table which is isolated from places of public resort, or by their meddling with the brakes of a car which is stationary on a descending grade. It has been held liable for an injury to a young child who was brought by its parent to a place near the track where the company allowed the public to cross, and afterwards strayed on the track, where he was struck by an engine which came on a down grade without a brakeman.5 3 Special Obligations to Children. A failure to fence the track, although the fence was primarily designed to prevent cattle straying upon it, has been held to be competent proof of negligence in an action for injury to a child straying upon the track. The courts, pressed by humane considerations, have been at times disposed to treat the company as the guardian and protector of children coming upon its carriages or premises, and to hold it bound as well to exercise physical control over them as to give them advice and warning.7 1 Sioux City & P. R. Co. v. Stout, 17 Wall. 657; Keffe v. Mil. & St. P. R. Co., 21 Minn. 207; Kansas Cent. R. Co. v. Fitzsimmons, 22 Kan. 686, 18 Kan. 34; Koons v. St. Louis & I. M. R. Co., 65 Mo. 592; Whirley v. Whiteman, 1 Head, 610; Mullaney v. Spence, 15 Abbott Pr. N. s. 319; Hydraulic Works Co. v. Orr, 83 Pa. St. 332; Birge v. Gardiner, 19 Conn. 507; Lane v. Atlantic Works, 111 Mass. 136, 107 Mass104. But see Hughes v. Macfie, 2 Hurl. & C. 744; Mangan v. Atterton, L. R. 1 Exch. 239; Hargreaves v. Deacon, 25 Mich. 1. 2 Hagan's Case, 5 Dill. 96. 5 Kay v. Penn. R. Co., 65 Pa. St. 269. 6 Schmidt v. Mil. & St. P. R. Co., 23 Wis. 186; Isabel v. Hannibal & St. J. R. Co., 60 Mo. 475; Williams v. Great Western R. Co., L. R. 9 Exch. 157. But see Ditchett v. Spuyten Duyvil & P. M. R. Co., 67 N. Y. 425, 5 Hun, 165, where the fence act was held to be designed only for the protection of cattle and passengers on trains, but not for that of travellers on the highway. 7 Pittsburg, A., & M. Pass. R. Co. v. Caldwell, 74 Pa. St. 421; Phil. City Pass. R. Co. v. Hassard, 75 Pa. St. 367; East * St. Louis, V., & T. H. R. Co. v. Bell, Saginaw City R. Co. v. Bohn, 27 Mich. 81 Ill. 76. 4 Central Branch U. P. R. Co. v. Henigh, 23 Kan. 347. 503; Hicks v. Pacific R. Co., 64 Mo. 430; Brennan v. Fair Haven & W. R. Co., 45 Conn. 284. Effect of Parents' Negligence. The negligence of parents in allowing children of tender years to wander unattended upon a track is contributory negligence which will defeat an action by the parent for loss of service, or under statutes providing a remedy for the relatives of persons killed by negligence, except where the defendant's act is wilful. The parent is not necessarily negligent where a young child goes abroad suddenly and unobserved, and puts himself in a dangerous place; and it is a question for the jury whether the parent exercised due care. The fact that parents have not the pecuniary means to provide a constant attendant for children has been considered in some cases as bearing upon the question of their contributory negligence. If the parent or protector is personally present, controlling the movements of the child, his negligence will defeat an action for an injury to the child in like manner as if he suffered the injury himself.1 Effect of Directions to Infants and Youths. Words in the form of command or direction, spoken by the company's servants to an infant or youth, may have the legal effect of force, when they would not have that effect if addressed to an adult.5 Negligence of the Child or of its Parents a Question for the Jury. — Whether the injured child exercised the care and discretion which 1 Pittsburg, Ft. W., & C. R. Co. v. Vining, 27 Ind. 512; Jeffersonville, M., & I. R. Co. v. Bowen, 40 Ind. 545, 49 Ind. 154; Evansville & C. R. Co. v. Wolf, 59 Ind. 89; Bellefontaine R. Co. v. Snyder, 24 Ohio St. 670, 18 Ohio St. 399; Ewen v. Chicago & N. W. R. Co., 38 Wis. 613; Chicago v. Starr, 42 Ill. 174; Hund v. Geier, 72 Ill. 393; Toledo, W., & W. R. Co. v. Grable, 88 Ill. 441; Glassey v. Hestonville, M., & F. Pass. R. Co., 57 Pa. St. 172; Pittsburg, A., & M. R. Co. v. Pearson, 72 Pa. St. 169; Penn. R. Co. v. Lewis, 79 Pa. St. 33; Smith v. Hestonville, M., & F. Pass. R. Co., 37 Leg. Int. 95, 10 Cent. L. J. 272; Wright v. Malden & M. R. Co., 4 Allen, 283. But see Government St. R. Co. v. Hanlon, 53 Ala. 70, 82. 2 Pittsburg, A., & M. R. Co. v. Pearson, 72 Pa. St. 169; Kay v. Penn. R. Co., 65 Pa. St. 269; Phil. & R. R. Co. v. Long, 75 Pa. St. 257; Wright v. Malden & M. R. Co., 4 Allen, 283, 288; Pittsburg, Ft. W., & C. R. Co. v. Bumstead, 48 Ill. 221; Man gam v. Brooklyn R. Co., 38 N. Y. 455; 3 Walters v. Chicago, R. I., & P. R. Co., 41 Iowa, 71, 78; O'Flaherty v. Union R. Co., 45 Mo. 70; Kay v. Penn. R. Co., 65 Pa. St. 269; Pittsburg, A., & M. R. Co. v. Pearson, 72 Pa. St. 169; Phil. & R. R. Co. v. Long, 75 Pa. St. 257; Chicago v. Major, 18 Ill. 349; Pittsburg, Ft. W., & C. R. Co. v. Bumstead, 48 Ill. 221; Chicago & A. R. Co. v. Gregory, 58 Ill. 226. 4 Ohio & M. R. Co. v. Stratton, 78 Ill. 88; Stillson v. Hannibal & St. J. R. Co., 67 Mo. 671; Morrison v. Erie R. Co., 56 N. Y. 302; Kay v. Penn. R. Co., 65 Pa. St. 269, 276, 277; Waite v. North Eastern R. Co., El., Bl. & E. 719. 5 Lovett v. Salem & S. D. R. Co., 9 Allen, 557; Kline v. Central Pacific R. Co., 37 Cal. 400. might reasonably be expected of him; whether his parents were negligent in allowing him to go into the street unattended, or in not preventing his escape into it; or whether the attendant was a person of sufficient discretion to have the charge of him, — are questions for the jury.1 1 Lovett v. Salem & S. D. R. Co., 9 Allen, 557; Mulligan v. Curtis, 100 Mass. 512; Lynch v. Smith, 104 Mass. 52; Commonwealth v. Metropolitan R. Co., 107 Mass. 236; Hunt v. Salem, 121 Mass. 294; Oldfield v. New York & H. R. Co., 14 N. Y. 310, 3 E. D. Smith, 103; Drew v. Sixth Av. R. Co., 26 N. Y. 49; Mangam v. Brooklyn Cent. R. Co., 38 N. Y. 455; Downs v. New York Cent. R. Co., 47 N. Y. 83; Ihl v. Forty-Second St. R. Co., 47 N. Y. 317; Cosgrove v. Ogden, 49 N. Y. 255; Prendegast v. New York Cent. & H. R. R. Co., 58 N. Y. 652; Fallon v. Central Park, N., & E. R. R. Co., 64 N. Y. 13; Hay croft v. Lake Shore & M. S. R. Co., 64 CHAPTER XII. INJURIES TO TRAVELLERS ON THE HIGHWAY. Injuries where the Company and the Injured Person are each exercising a Legal Right without any Relation between them arising from Contract. In the case of collisions between the company's engines and persons crossing the track in carriages or on foot at the intersection of highways, each is exercising an equal legal right, independent of any contract or favor extended by the one to the other. The individual has a right to cross the track, and the company has a right to cross the highway. This is not, on the one hand, the case of a passenger to whom the company's liability is governed by an implied contract to use the highest degree of skill and diligence; or, on the other, of a wrong-doer unlawfully on the track, and having no claim but for wanton injury. Nor is it the case of a servant who is presumed to take the risks incident to his employment. It is the case of two parties holding equal, independent rights, the exercise of which by one may result in injury to the other, with or without legal liability, according to the conduct of each. The duty of each under such conditions, in conformity with the principles of natural justice and municipal law, is to use ordinary care in the exercise of his own right to avoid injury to the other. If, notwithstanding such care by both parties, an injury happens, it is a misfortune which must be borne by the sufferer alone.1 The peculiar motive power and implements of a railroad company require a kind of skill, a degree of vigilance, and a class of precautions adapted to them; but the measure of its duty and liability, in relation to persons lawfully crossing or entering on its track, is the same as that which defines the duty and liability of the owners of carriages which are driven on the highway, or of other parties exercising independent rights. It is bound to use 1 Indiana Cent. R. Co. v. Hudelson, 13 Ind. 325, 328. ordinary care to avoid injury to travellers on the highway crossing its track; and, acting through servants, as engineers, conductors, and brakemen, it is responsible for injuries to such travellers arising from a want of ordinary care and skill on the part of its servants, — that is, such care and skill as the mass of prudent persons in their business are accustomed to exercise.1 Thus, in a leading case, which has been frequently cited with approval, it was considered that the highest diligence is not to be exacted of any person, except when a compensation is paid for the service; or when the person injured is in the power and under the control of the defendant, as in the case of passengers in the charge of a common carrier; or when the defendant officiously obtrudes his services upon the plaintiff, or is the only one of the two who is to derive a benefit from the act; or is in the wrong place at the time he commits the injury, or engaged in an unlawful calling: but where both parties stand on an equality as to the means of avoiding the accident, and are each engaged in a lawful employment, only ordinary diligence can be required of either.2 It is sometimes said that railroad companies which use steam as motive power are required to exercise "the utmost care" to prevent injuries.3 This inexact mode of expression is used to enforce the duty of applying a vigilance and skill adapted to the peculiar dangers which are incident to the use of steam as a motive power, without intending to vary the measure of liability.1 But while the same rule of care and skill measures the liability 1 Beers v. Housatonic R. Co., 19 Conn. 566, 576; Cleveland, C., & C. R. Co. v. Terry, 8 Ohio St. 570; Pendleton St. R. Co. v. Shires, 18 Ohio St. 255; Bellefontaine R. Co. v. Snyder, 24 Ohio St. 670, 676, 18 Ohio St. 399; Pendleton St. R. Co. v. Stallmann, 22 Ohio St. 1, 19; State v. Balt. & O. R. Co., 24 Md. 84, 103; Bannon v. Balt. & O. R. Co., 24 Md. 108, 121; Baltimore & O. R. Co. v. Breinig, 25 Md. 378; Baltimore & O. R. Co. v. Bahrs, 28 Md. 647; Baltimore & O. R. Co. v. State, 29 Md. 252; New Orleans, J., & G. N. R. Co. v. Bailey, 40 Miss. 395, 458, 459; Wilds v. Hudson River R. Co., 24 N. Y. 430, 441, 29 N. Y. 315; Weber v. New York Cent. & H. R. R. Co., 58 N. Y. 451, 462; Shaw v. Boston & W. R. Co., 8 Gray, 45; Aurora Branch R. Co. v. 3 Johnson v. Hudson River R. Co., 20 N. Y. 65, 75; Cook v. New York Cent. R. Co., 3 Keyes, 476, 479; Fero v. Buffalo & S. L. R. Co., 22 N. Y. 209, 213. See Baltimore & O. R. Co. v. Miller, 29 Md. 252, 261. 4 Weber v. New York Cent. & H. R. R. Co., 58 N. Y. 451, 460-463. |