Court of Appeals of Kentucky.
March 5, 1918.
ACTION: Affirmed.

Appeal from Circuit Court, Knox County.
Action by Noble Steele, by his next friend, against the Louisville & Nashville Railroad Company.
From a judgment for plaintiff, defendant appeals.

Noble Steele, a boy 8 years old, while attempting to let go of or alight from the steps of a moving coal car on which he was riding, or which he had hold of while running by the side of the car, was thrown under the wheels and both of his feet cut off. In this suit by his next friend to recover damages for the injuries so sustained, there was a verdict and judgment in his favor for $10,000, and on this appeal a reversal is asked on several grounds, to which attention will be called.

At the time the injuries complained of occurred, and for 2 or 3 years before, the railroad company operated daily between Corbin and Page, Ky., a coal train, in charge of Conductor Wilder, which took empty coal cars each day from Corbin to coal mines in the vicinity of Page, and brought back from the mines to Corbin cars loaded with coal. In making these trips the train usually stopped or ran at a slow rate of speed through a village called Grays, having a population of probably 500, consisting mostly of miners; and it was here that Noble Steele lived with his parents. It appears that there were at and about Grays quite a large number of boys between 6 and 15 years of age who were apparently permitted by their parents to run at large, and these boys, or a great many of them, were in the habit of getting on, riding on, and jumping off this train, in charge of Conductor Wilder, every day as it went through Grays, and this practice had continued for 2 years or more before Noble was injured.

On the trial there was evidence for the plaintiff by five or six persons who lived at and near Grays that it was a very common thing to see from 10 to 20 boys between 6 and 15 years old riding at the same time on this coal train in charge of Wilder. Some of the boys, according to the witnesses, would ride on the engine, at other times, in the caboose, and again by getting on the steps or stirrups of the coal cars, or on the trucks. These witnesses further said that many times these boys were not only permitted by Wilder and other members of the crew to jump on the train and ride, but were enticed and encouraged by them to do so, and daily got on the train in the presence of Wilder without any objection on his part, and that this practice on the part of the boys and Wilder had habitually continued for 2 years or more.

There was further evidence by Noble to the effect that on the occasion of his injury he got on a step of a coal car five cars from the caboose before the train started, and after he had climbed on the step he saw Conductor Wilder come out on the step of the caboose and signal the engineer to start the train. He said that at the time, and before the conductor gave the signal to start, each was in plain view of the other, and he was looking at Wilder, and Wilder was looking at him; that after the train started and was beginning to run rather fast, he attempted to get off, and his feet got under the wheels; that before this he had ridden many times on Wilder's train; that sometimes Wilder would see him and sometimes he would not, but that he had never said anything to him about not getting on the train; but sometimes Wilder would ask him to ride, and at other times he would get on without being asked. He also testified that he knew it was dangerous to go about or get on moving trains, as he was liable to get under the wheels and be killed or crippled; that he had often been warned by his father and other men about Grays not to do so, and had been whipped by his father for jumping on trains, but that he had been doing this for about 2 years before he was hurt.

The father of Noble testified that he had warned him not to go about trains, and had whipped him for doing so, and shortly before the accident to Noble had talked to Conductor Wilder about him, and told him to keep Noble away from the train, but that Wilder said to let him have his fun; that it would make a good railroad man out of him some day.

For the railroad company Conductor Wilder testified that he had never played or joked with Noble or any of the boys, or invited, encouraged, or permitted any of them to ride on his train, nor had Noble or any of the boys ever gotten on the train in his presence without objection and protest on his part; that he had done everything that was possible for him to do to keep the boys off the train; that he did not see Noble hanging on the step of the coal car when he gave the signal to start the train, nor did he know that he was on or about the train; that he had no authority from the company to permit any person to get on the train or ride without a pass, and that he had never done so, as it was against the rules of the company to allow it. The other members of the crew, while admitting that a number of boys about Grays were in the habit of daily jumping on and off the coal train, denied that they had ever permitted or encouraged them to ride, or that they had ridden in their presence without objection. They said that whenever they saw the boys on, or trying to get on, the train they made them get off or go away, but that sometimes, on account of the length of the train and the difficulty in getting over it quickly, it was not possible to keep the boys off the train.

All of the evidence on behalf of the plaintiff as to the habitual custom, extending over a period of 2 or 3 years, of numbers of small boys jumping on, riding on, and getting off, this coal train in charge of Conductor Wilder, and as to the habitual practice of Wilder, the conductor, and the other members of the train crew for this length of time, in permitting small boys to get on and ride on the train, and tacitly if not actively inviting, encouraging, and permitting them to do so, was objected to by counsel for the railroad company, and clearly it was very prejudicial to the rights of the railroad company if incompetent. Whether this evidence was admissible or not depends on the question whether the railroad company was under any duty, under the facts and circumstances disclosed in the evidence for the plaintiff, to anticipate the presence of boys on and about this coal train in charge of Wilder as it went through Grays, and to exercise ordinary care to prevent injury to them. If it was under such duty, then the evidence was competent for the purpose of bringing home to the company notice of the custom of the boys and the necessity that accordingly existed to look out for their presence on and about the cars, and to exercise ordinary care to avoid injury to them. But if it was under no duty to anticipate their presence, then it was under no duty to take care not to injure them until after they had been put in peril, and this peril was actually discovered.

In determining whether the company was under a duty to anticipate the presence of these boys on and about the cars and consequently under a duty to take care not to injure them, the evidence conducing to show that the boys followed this practice in the presence of and at least by the tacit permission of Conductor Wilder, and without objection on his part, should not be lost sight of.

It is a material and controlling factor in the case to be considered in connection with the well-known attractiveness of engines, cars, and railroad trains for boys, and the great danger attending their efforts to go upon or about them when running or when liable to be moved; and when so considered we think there can be no doubt that the company was under a duty to anticipate the presence of boys on and about the cars at Grays, and to exercise ordinary care not to harm them; and this under the principle frequently announced by this and other courts, that owners of dangerous premises, machinery, or appliances that are attractive and accessible to children, who habitually permit children to play about them, are required to take notice of their habits, and to exercise care to prevent injury to them. It follows from this that there should be applied to railroad companies the same degree of care in respect to looking out for children who habitually go about and upon their trains in the presence of and with the consent of the servants in charge, or at least without objection on their part, that is required to be exercised by other persons in charge of dangerous places, machinery, or appliances that are attractive to children.

What this degree of care is has been announced by this court in an unbroken line of decisions setting forth that the owner of easily accessible, attractive, and dangerous places, appliances, or machinery, who knowingly permits children of tender years to play about them, must anticipate their presence where he has allowed them to go and be, and must exercise ordinary care to protect them from the danger to which they will be subjected. In view of the fact that railroad trains and cars are necessarily in exposed and easily accessible places, we think the duty the company owes to children should be limited to cases in which children are knowingly permitted by the persons in charge to get on and go about them.

Accordingly we think that the evidence as to the habitual and continued custom of boys jumping on and riding on and jumping off this coal train, and as to the habitual and continued practice of the conductor in permitting them to do so, was competent, and put upon the company the duty at the time Noble was injured of anticipating that Noble and the other boys would do on that occasion what they had been in the habit of doing, and the duty of exercising ordinary care to discover their presence on and about the cars, and the duty of exercising ordinary care to prevent injury to them when their presence was, or could by the exercise of ordinary care have been, discovered. And these issues, under the facts of this case, were for the jury under proper instructions.

It may be asked, What is the company to do under circumstances like this to relieve itself from liability for accidents that may happen to boys who make a practice of jumping on its trains? The answer to this is that the railroad company will not be responsible for injuries to boys who jump on its trains, unless the train crew permit or encourage them to do so, or unless after they have been actually discovered in a place of peril the company fails to exercise ordinary care to prevent injury to them. In other words, when the railroad company, through its servants in charge of the train, does not encourage or invite or permit boys to ride on its trains, those who get on will be treated as trespassers and the company only held to the duty that it owes to ordinary trespassers.

A railroad company is no more bound to keep its tracks, cars, and premises safe for infants than it is to keep them safe for adults, unless and until by its course of conduct it has established a status for children that imposes upon it more care than it would owe to adults or than it would owe to children except for its course of conduct. And so if a different standard of duty and care is exacted in respect to children from that which is exacted in the case of adults, it is only because the railroad company by its dealings with the children has induced them to believe that they might safely go and be where they do go, and has put before them and within their easy reach things that are inviting and attractive to childish fancy, and which they have not sufficient discretion and understanding to appreciate the danger of meddling about or coming in contact with.

It might also here be observed, that a railroad company has, in section 805 of the Kentucky Statutes, making it an offense for any person except passengers and employes to get on a moving train, an efficient means preventing trespassing on its trains and cars, although this statute did not interpose a bar to a recovery by Noble, on account of his age and the circumstances attending his injury.

In addition to what has been said, there remains the disputed question as to whether the conductor, when and before he started the train, discovered the presence of Noble riding on or hanging on the step of the coal car, and if he did, what was his duty under the circumstances. This issue we will consider and dispose of as if Noble was a trespasser pure and simple, and as if he had not been invited or encouraged to get on the step or on the car by the previous conduct of the conductor. Upon this issue there was sharp dispute. According to the evidence of the conductor, which is corroborated by another witness, he did not and could not have seen Noble on the step of the coal car at or before he signaled for the train to start; while, according to the evidence of Noble, which was also corroborated by other testimony, Noble was in plain view of the conductor when he signaled the train to start, and in such a position as that he could not have avoided seeing him. So that it was a question for the jury.

Looking at the matter as if Noble was an ordinary trespasser, the only duty the conductor owed him was to exercise ordinary care to prevent injury to him after his peril was actually discovered by the conductor, and if the conductor saw Noble hanging on the step of this coal car before and at the time he signaled the train to start, it cannot be denied that he must have known that Noble was occupying a place of extreme danger for a boy of his age, and his duty under these circumstances was not to start the train until Noble had been removed from this place of danger. This was the only thing open for the conductor to do in the exercise of ordinary care, and this, assuming that he saw Noble before the train started, he could easily have done.

Another issue in the case relates to the subject of contributory negligence. On behalf of the railroad company it is insisted that because the evidence of Noble shows that he knew it was dangerous to get on or off of a moving train, and had been warned many times not to do so, as well as whipped for doing it, there should have been a directed verdict in favor of the company, upon the ground that the contributory negligence of Noble was sufficient to defeat a recovery in his behalf. If Noble had been a man, or a boy of mature years, it might well have been ruled as a matter of law that he voluntarily and understandingly assumed the risk of being hurt when he took this dangerous position, and that he should be charged with such contributory negligence as would bar a recovery. But Noble's negligence in attempting to ride in this dangerous place, or in attempting to get on in this dangerous place, should not, on account of his age, conclusively bar his right of recovery, although he was a bright, intelligent boy; had lived near the railroad all of his life, and was as familiar with the operation and movement of trains as any boy of his years and discretion could well be, and knew, as he testified, that it was dangerous to jump on moving trains, and had been warned not to go about them, and had been whipped for doing so. He doubtless knew that if he fell under the train it would kill him or cut his legs off. But nearly any boy of his age will say, if asked, that he knows if he falls in the river he may get drowned, or if he falls in the fire he will get burned, or if he gets in the way of a street car or an automobile he may be killed, or if he plays with a loaded pistol he may shoot himself. But mere boyish knowledge of everyday things like these about which children learn almost as soon as they are old enough to walk does not necessarily imply that they appreciate or understand the necessity for keeping away from or not doing these things.

Boys will light powder with matches; they will fire off dynamite caps with hammers; they will handle with reckless and thoughtless indifference loaded pistols; they will skate on ice so thin that it will scarcely hold them up; they will hang on trains, street cars, and automobiles; climb electric wire poles, play with live wires, and take innumerable and perilous risks in a variety of ways of being crippled or killed that an adult or a boy of mature years would not dare take. They act on impulse, and the greater the danger the greater the fun to them. They do dangerous things without giving a moment's thought to the consequences that may follow what they do, and to hold as a matter of law boys of 8 years old, whether good or bad, bright or dull, to the high standards demanded of men in looking after their own and the safety of others, would be opposed to the good judgment and common sense of all right- thinking people.

And so the mere statement of a boy of 8 that he knows a thing is dangerous, or knows it will hurt him, or knows he will be crippled or killed if he does it, is not to be given the meaning it would have if spoken by a mature mind. Knowledge in cases where contributory negligence is in issue, as well as in many others, implies age, capacity, and experience sufficient to appreciate and comprehend the full meaning and effect of what one does and the consequences that will follow. It is this degree of capacity that the law presumes men and boys of mature years to possess, and accordingly it holds them accountable for their acts; but when it comes to measuring and judging the accountability of children of immature age, it has always been the policy of this court to leave its determination to a jury as a question of fact about which there may be reasonable difference of opinion.

The further argument is made in behalf of the railroad company that it should not be held responsible for the acts of the conductor in inviting, permitting, or encouraging Noble or other boys to get on or ride on the train, although he may have done so, because the rules of the company introduced in evidence showed that the conductor was prohibited from permitting any person to ride on his train without a pass or permit from higher authority; therefore it is said that if he acted in respect to these boys in the manner testified to by the witnesses, he was acting entirely outside the scope of his employment, and the company was not liable for the consequences of his acts.

We cannot agree with this view of the law as applicable to the case. The conductor was in charge of this train, and Noble and the other boys who were, as some of the witnesses said, encouraged and permitted by him to ride on it were too young to inquire into, or take notice of, or appreciate, or understand the limits of the conductor's authority. They doubtless took it for granted, as boys might well do, that as the conductor was in charge of the train, he had the right to let anybody ride at any time or in any manner that he saw proper.

Almost every railroad case that we have or at least a great many of them, grow out of accidents that happen on account of violations of company rules by conductors and other trainmen, and we perceive no good reason why the company should not be held responsible for the acts and conduct of its conductor in permitting children to get on or ride on his train to the same extent that it would be responsible in other instances in which injury or loss is occasioned by the conductor's violation of the rules of the company.

We are also of the opinion that it was competent to show that the father of Noble requested the conductor not to permit him to get on, or ride on, or go about, the train, and this upon the ground that it furnished notice to the conductor of the habits of Noble, and that the practice he indulged in of trying to ride on the train was against the wishes of his parents.

The instructions are complained of, but, according to the views we have expressed, they are free from substantial error. The jury were in substance told: (1) That if they believed from the evidence that Conductor Wilder, for some 2 years or more before Noble was injured, had daily and continuously permitted and allowed, without objection, large numbers of boys, including Noble, to board and ride upon his train in his presence and with his knowledge, and during this time numbers of boys, including Noble, did habitually and constantly board the train of Wilder with his permission and acquiescence, then it was the duty of Wilder and the persons in charge of the train on the occasion of Noble's injury to exercise ordinary care and keep a reasonable lookout for Noble in order to ascertain whether he was on or about the train, and to exercise ordinary care to avoid injury to him. And if they believed that Noble was injured while exercising ordinary care for his own safety, his age and experience considered, they should find a verdict in his behalf. (2) They were further told that if they believed that the persons in charge of the train saw Noble on the train, or attempting to get on, and while the same was in motion, and had reasonable grounds to believe that he was then and there in peril, then it was the duty of the persons in charge of the train to exercise ordinary care to avoid injury to him. (3) Or if they believed that Wilder saw Noble hanging on the side of the train, and that he was in danger, and that Wilder, with knowledge of his position, started the train, and failed to exercise ordinary care for the protection of Noble after seeing his peril, if any there was, and should further believe that as a direct and proximate result of the failure of the conductor or other persons in charge of the train to perform these duties Noble was injured, they should find for the plaintiff. (4) They were further told that unless they believed from the evidence that Wilder habitually permitted and allowed Noble and other infants in large numbers to catch onto and ride on his train, and for such length of time as that it became the common use and habit of Noble and other children, then the defendant company, its agents and servants in charge of the train, owed to Noble no lookout duty, and they should find for the company, unless they believed from the evidence that the persons in charge of the train saw his place of peril before it was started.

On the subject of contributory negligence the jury were told that:

"If you believe from the evidence that Noble Steele was warned of the danger of getting on, off, and riding upon the train in and about Grays, and had sufficient intelligence, judgment, and understanding to know and appreciate the danger incident to doing so, yet he persisted in getting on and off and riding said train, such action on his part amounted to contributory negligence, such as bars his right of recovery, and you will find for the defendant company."

Finding in the record no error prejudicial to the substantial rights of the railroad company, the judgment is affirmed.

Ky.App. 1918.


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