HOLMES v. MISSOURI PACIFIC RAILWAY COMPANY
Supreme Court, Missouri, November 27, 1907.
Reported in 207 Missouri Reports, 149.
Action by C. W. Holmes and wife to recover for the death of their child, F. G. Holmes. The child, eight years old, was struck and killed by a locomotive engine at the crossing of an avenue. Two points in conflict were, whether defendant was negligent, and whether the child was contributorily negligent.
The following instruction was given at plaintiff’s request: “(4) If the jury believe from the evidence that Freeborn G. Holmes was a boy of immature age, and had not the capacity of an adult, and that he exercised such care as ought reasonably to have been expected for one of his age and capacity, then he was not guilty of contributory negligence.”
To this instruction defendant excepted.
An instruction given at the request of defendant was, that, if the child failed to exercise such care and caution as an ordinarily prudent boy of his age and capacity should have exercised under the circumstances, and by reason thereof contributed to his own death, then your verdict must be for the defendant, regardless of all other facts in the case.
Verdict for plaintiff. Judgment for plaintiff in Circuit Court. Defendant appealed.[[216]]
Valliant, J.... In the brief for defendant, pages 61 and 139, the idea is advanced that the only theory on which the plaintiffs’ judgment could be sustained would be that the defendant is liable for the consequences of the reckless conduct of the deceased child. That is a misconception of the theory on which the defendant’s liability rests. The defendant is liable only for its own negligence, and if its plea of contributory negligence is not sustained, still, it is not charged with the consequence of the child’s negligence; but it is only not excused thereby for the result of its own negligence. It is not always essential to a plaintiff’s recovery, in an action for tort, that the evidence should show that the accident was the result of the defendant’s negligence alone. A defendant may be liable if his negligence contributes with that of a third person to produce the injury complained of; in such case he is not held liable for the negligence of the third person, but only for his own negligence, without the contributing force of which the negligence of the third person would not have caused the injury. But the policy of the law is such that ordinarily a defendant guilty of negligence is relieved from the liability for his own conduct if the person injured was himself guilty of negligence that contributed to the result. On that theory the defendant’s act is none the less negligent, and he is none the less culpable, but the law will not allow a plaintiff to recover when he himself, or the person for whose injury he sues, was also guilty of negligence contributing with that of defendant to the result. There is reason and justice in that policy of the law; it is an admonition to every one to exercise due care for his own safety, and it authorizes another to presume that he will do so, and, so presuming, adjust his own conduct. But common experience tells us that a child may be too young and immature to observe the care necessary to his own preservation and therefore when a person comes in contact with such a child, if its youth and immaturity are obvious, he is chargeable with knowledge of that fact and he cannot indulge the presumption that the child will do what is necessary to avoid an impending danger. Therefore one seeing such a child in such a position is guilty of negligence if he does not take into account the fact that it is a child and regulate his own conduct accordingly.[[217]] An act in relation to a person of mature years might be free from the imputation of negligence while an act of like character in view of a child would be blameworthy. Therefore when the law says to the defendant although the act of the deceased child contributed with your act to produce the result, yet, because of his youth and immaturity, he is not adjudged guilty of negligence, it does not charge the defendant with the consequence of the child’s conduct, but it only does not, for that reason, excuse him for its [his] own negligence.
If the defendant in such case had been guilty of no negligence there would have been no accident.
Judgment affirmed.
Gantt, C. J., and Burgess, Lamm, and Woodson, JJ., concur. Fox and Graves, JJ., dissent.