CULBERTSON v. CRESCENT CITY RAILROAD CO.
Supreme Court, Louisiana, April 6, 1896.
Reported in 48 Louisiana Annual Reports, Part 2, 1376.
Plaintiff sued for the killing of his son, 6 years and 11 months old, who was hit by a car at a street crossing.
In the District Court, there was a verdict for plaintiff, and judgment thereon. Defendant appealed.[[218]]
Breaux, J. [After stating the claims of both parties, and reciting the testimony of plaintiff’s witnesses and of part of defendant’s witnesses.]
The motorman and the conductor substantially testify that everything was done to prevent the accident; that the boy darted in front of the car and, that the motorman quickly stopped the car.
After as careful and close an analysis of the evidence as it was possible for us to make, we think that the weight of the testimony is with the defendant.
Plaintiff’s theory that the little boy was standing on the track, between the rails, and that the motorman ought to have seen him, is not sustained by the evidence of his own witnesses; they do not testify, with any degree of certainty, where he was just preceding the accident. The witnesses for the defendant agree in stating that he was not on the track, and that the accident was occasioned by the sudden act of the child.
Granted as contended by the plaintiff that the motorman did not see the child before he was knocked down by the fender: if the child had escaped his attention, because of his sudden and unanticipated act itself, it becomes evident that the defendant is not liable. Whether he was seen or was not seen by the motorman would not render the defendant responsible, if owing to thoughtless impulse of the child he brought about the accident by a sudden act which could not be foreseen or guarded against by the motorman or any one else in charge of the car.
This brings us to the question of contributory negligence. Courts are averse to finding children guilty of contributory negligence, and are readily and properly inclined to disregard the thoughtlessness natural to boyhood, but accidents may happen for which the unconscious agent may not be responsible.
The fact that a child may not be capable of contributory negligence does not always render a defendant liable upon the mere proof of the injury. The test is negligence vel non. If the defendant or the defendant’s agent or employee was not negligent, it is not liable.