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but if there is reason to believe that it is not clear, the comiwny's ser*
vants operating a train must not act on the assumption that it is clear.
If they do, the company is responsible for the consequences: Frick y.
St. Louis etc. Ry. Co., 75 Mo. 595.

If, on the other hand, the child came on the track suddenly and an-
ezpectedlv, so near that it could not be discovered in time to stop the-
train in the exercise of ordinary care, or if the engineer and firenian
were, by necessary attendance on their duties, prevented from seeing
the child until too late to stop the engine, in the exercise of ordinary
care in time to avoid harm to the cbiid, then there is no negligent act-
or liability for resulting injury: I'ottoms v. Seaboard etc. R. R. Co.
114 N. C. 099; 41 Am. St. Rep. 799. Where both a railroad and the-

Digitized by


] Babnks v. Subbveport City R. R. Co. 429

pablieha?e a right to use the street, the duty of the companj to look
oat for persons on tha track is jast as great as the daty of a traveler to
look oQt for the trains, the difference being that an IndiTidoal moal
fire way to a train which, in the nature of thinss, cannot be stopped
uttantly: Eswin v. St. Louis etc. Ry. Co., 96 Mo. 290« It has been
held negligent for a boy ten years of age to lie on his baok onderneath
can, aod crosswise of the track, and he cannot recoTor because of being
atr«flpasBer: McMallen v. Fennsyivania R. B. Co., 132 Pa. St. 107; 19
Am. 8t. Rep. 591 ; but it has been held not necessarily negligent for a
child six or seTen years old to attempt to crawl under a freigot-oar ob*
etmctiDg a street crossing : See note to Spencer v. Baltimore etc. R. R.
OOm 54 Am. Bep. 274. A railway corporation is not bound to keep a
lookoat to prevent boys from swinging on the ladders of its moving
freight trains, and its failure to do so is not negligence. Nor must the
company watch to see that a boy in stealing, or attempting to steal, a
ride is not injured: Catlett ▼. Railway Co., 67 Ark. 461; 38 Am. St.
Rep. 254.

It has been held that if the evidence, as a whole, shows that a boy
eleven years old is injured or killed upon a railway track elsewhere
than at a public crossing, and there is no negligence imputable to the
company other than the failure of itf servants to give signals or to check
tbeapeed of the train at a place other than a public crossing, the com*
my is not liable: Atlanta etc. Ry. Co. v. Gravitt, 93 Ga. 369; 44 Am.
St. Rep. 145. It is not to be understood from this, however, that the
datj is not imposed upon railroad companies to observe all ordinary
and reasonable care and diligence to avoid injuring or killing a human
being on the track elsewhere than at a public crossing, when his pres-
ence becomes known to the engineer. The duty of stopping a train to
prevent destroying human life exists when the danger becomes appar-
ent^ irrespective of the ''crossing" law. In this case the boy was upon
> high trestle at the time of the accident, and it was obviously out of
hi8 power to escape danger except by going forward to the end of the
tr«>8tle. He could not leave his place of daneer by going off to one side,
and, while the whistle was not sounded, which ^ould have been appar-
ently an idle act under the circumstances, all was done which could
wemhlj be done to stop the train, which was running on a down grade,
snd, despite all efforts, could not be stopped until it had run several
hundred yards. It is evident that an act may be negligent at a particu-
lar place which would not be so at another place and under (Afferent
circumstances. But even in the country, where a child six or seven
years old, lying insensible or asleep on a railway track, near a highway
<^j^ng, is injured bv a train, failing to give a warning signal, after
the object is perceived by the fireman and engineer in time to stop, the
infant may recover, although the trainmen supposed the child to be a
hnncb of leaves until it was too late to atop: Meeks v. Southern Pac.
R. R. Co., 66 Cal. 513; 38 Am. Bep. 67. So, if a child dressed in red,
And easi.lv distinguishable from a hog or a doz, is discovered on the
track, $xir is run over anri injured or killed, when those in charge of
the train, by using close scrutiny, or ordinary skill and caution after
they observed the object on the track, could have perceived that it was
A child in time to stop the train, the company is negligent and liable:
label V. Hannibal etc. R. R. Co., 60 Mo. 475. Locomotives with trains
of cars attached should not be allowed to pass through the inhabited
parts of cities with such force or speed as to be incapable of immediate
and absolute control, and not then without special care to see that the
track is all clear in its curves and more difficult places; and where the
engineer, under such circumstances, is not conducting his train in a
carefnl and prudent manner, and does not have the control over it
vhich he ought to have in a city where persons are often passing and
repassing over and along the track, and a child under three years of age
I! Kijnred in consequence by want of such control, it is an omission to
perform a duty, for which the company is liable: Daley v. Norwich
ete. R. K. Co., 26 Conn. 591; 68 Am. Dee« 413. U a brakeman sta-

Digitized by


430 Bari«£s I?. SuREVEPORT CiTY R. R. Co. [Loui^ana»

tioned on the front car of a gravel train, whose duty it is to keep a look-
out, neglects his duty by allowing his attention to be attracted to a
passing express train, and a child abjut to cross the track is struck by
a gravel-car and injured, the failure of the brakeman to do what he
ought to have done renders the railroad company liable: Bellefontsine
etc. R. R. Oo. V. Snyder, 18 Ohio St. 399; 98 Am. Dec. 175. The act of
a railroad company in piling wood upon the tender of an engine so as to
obstruct the engineer's view ahead, together with the engineer's failing
to look out upon the track as he might have done through a window,
or to place a sentinel upon the tender, will make the company liable
for running over and injuring an unattended child, four years of age»
in the vicinity of several schools, though the engine, with the tender
in front, was slowly passing through a street: North Pennsvlvania
R. R. Go. V. Mahoney, 57 Pa. St. 187. In running backward through
streets, the engineer should see that the brakeman is at his post and
keeps a lookout on the track to warn him in case of danger. It is the
duty of the fireman to ring the bell continually while passing through
a town or villase. If an accident happens while thus running through
the streets, and one of these three men is not immediately at his post,
although near it, it gives good cause for examination and close investi-
gation : Hamilton v. Morgan's etc. Co., 42 La. Ann. 824. It is the clear
duty of a railway company to provide safe egress from their cars for
their passengers, infants as well as adults, to give notice of arrival at
stations, to allow passengers proper and sufficient time to alight,
and to take care not to start the train while passengers are in the
act of getting off. For a neglect of such duties, resulting in an injury
to a child pass ^nger, the company is liable: Lehman v. Louisiana
• etc. R. R. Uo., 37 La. Ann. 70o, where a child was injured ^s a train
started with the usual jerk, without giving it time to be safely
landed. It is the duty of a railroad company having cars standing
on a street crossing to give notice of the starting of the train; but
if a child seven years of age attempts to pass between the cars and is
injured by the starting of thu train, the question as to the negligence of
the railroad company in starting the train without warning is generally
one of fact, which may properly be submitted to the jury for their de-
termination: Philadelphia etc. R. R. Co. v. Layer, 112 Pa. St. 414,
It 13 not the duty of the employees of a railroad company, before start-
ing a train, to inake an examination to see if any children are hanging
upon or have crawled under it: East St. Louis Ry. Co. v. Jenks, 54 111.
A pp. 9L

A railway company is not, at least, liable for injuring a child ten years
old, who is tresp issing on the company's property without the knowl-
edge of those operating a train, and whose presence is not known to
them until after the accident: Matson v. Port Townsend etc. R. B., 9
Wash. 449. Especially is this true where the child persists in goine
under the cars after having been warned that it is dangerous, ana
understands and appreciates the perilous position of one so situated.
If, therefore, he goes under the cars, under such circumstances, and
those in charge of the engine cannot possibly see him from their posts
of duty, and none of the employees of the company aire aware oi bis
presence, or have any cause to anticipate his presence, there can be do
recovery against the railroad company by reason of his injury and
death: Atchison etc. R. R. Co. v. Todd, 54 Kan. 551.

It has been held not to be the duty of a railroad company to fence
its yards in cities and towns: Barney v. Hannibal etc. R. R. Co., 126
Mo. 372; and that the statute requiring railroad companies to fence
their roads, and making them liable for damages sustained in conse-
quence of neglect to do so, is inapplicable to the case of a child straying
ui>on an unfenced railroad track: Fitzgerald v. St. Paul etc. Ry. Co.,
20 Minn. 33!); 43 Am. Rep. 212; note toWitte v. Stifel, 47 Am, St. Rep.
674. But other cases hold that it is negliizence for the company not to
fence as required by law, and thnt, if a child is injured as a consequence
of such neglect, the company is liable in damages therefor: Schmidt T*

Digitized by


June, 1895.] Barnes v. Shreveport City R. R. Co. 431

Milwaukee etc. "Ry. Co., 23 Wis. 186; 99 Am. Dec. 158; Chicago etc-
B. R. Co. V. Grabiin, 38 Neb. 90. In Keyserv. Chicago etc. Ry. Co., 56
Mich. 559, 56 Am, Rep. 405, a railroad company's neglect to fence its
track was held to be a question for the jury to consider, as^ bearing on
its liability for injury done to a child which got upon the track in con-
eeqaence of each failure and was injured.

One who sella and delivers gunpowder to a child of tender years,
knowing that it has had neither experience nor knowledge in its use^
and is an unfit person to be intrusted with it, is responsible for the
injuries sustained by the child by exploding it, in ignorance of its
efirects, and using that care of which he is capable, and this although
the Tender is licensed to sell gunpowder: Carter v. Towne, 98 Mass*
567 ; 96 Am. Dec. 682. A railroad company is liable for the negligence
of its servants in placing and leaving torpedoes on a railway track, at
a point where the public, including children, are permitted to pass:
Pittsburgh etc. Ry. Co. v. Shields, 47 Ohio St. 387; 21 Am. St. Rep.
840. For liability for injuries to chiliren arising from other like agen-
cies, see monographic note to Gilson v. Delaware etc. Canal Co., 36
Am. St. Rep. 835, discussing proximate and remote cause.

It is not sufficient care on the part of a gripman on a cable-car, on
approaching a curve in a street, to ring the bell, and, observing that
the way is clear in front, to go ahead, neither looking to the ri^ht nor
left. If, hy looking to one side, he must have seen a little child tod-
dling along for a distance of at least tliirty-tive feet on the street, in
the direction of the approaching car, after he saw it on the eidewalk,
and where the car must have gone a much greater distance, it is negli-
gence, if the child was run over and injured, owing to the gripman's
want of onlinary care in looking out and attending to his business:
Winters v. Kansas City etc. Ry. Co., 99 Mo. 509; ]7 Am. St. Rep. 591.
It is error, however, to rule, as a matter of law, that if the driver of a
street railway car sees a child in the street approaching the car, and
in such close proximity that it may reat^h the track before the car
passes, it is negligent not to stop the car. The standard of duty in such
a case is a shifting one, and it is a question for the jury to determine
whether, under all the circumstances, it was his duty to stop: Phila-
delphia etc. Ry. Co. v. Henrice, 92 Pa. St. 431 • 37 Am. Rep. 699. The
substitution of the electric and cable-car for the horse-car undoubtedly
renders impracticable and dangerous certain uses of the street which
were once permissible and comparatively safe, and it is the duty of per-
sons using the highway to recognize and conform to the changed con-
dition ; but it is also the duty of those operating such cars to use all
the care and caution that a proper regard for the safety of those travel-
ing upon the public highway requires, consistent with a proper enjoy*
ment of franchises and the right to successfully operate electric and
cable roads. While street-cars have no exclusive rights in the streets,
they do have a preference between crossings, and, while they must be
managed with such care as not to negligentljr injure persons in the
streets, pedestrians must use reasonable caution to keep out of their
wav: Fenton V. Second Avenue R. R. Co., 126 N. Y. 625; Thompson v.
Buffalo Ry. Co., 146 N. Y. 196. The presumption, however, that a per-
son seen on a street-car track will leave it before a street-car reaches
him, cannot be indulged in when a child of tender years is seen, though
it was negligent in going on the track. If the defendant's servants see
its dangerous i)osition, it is their duty to exercise all the diligence pos-
sible to avoid injuring it: Wallace v. Suburban Rv. Co.. 26 Or. 174.
Streets, however, are not intended as a playground for cnildren, and
if a child several years of age, old enough to know better, recklessly or
without heed, runs or darts suddenly in front of a street-car in rapid
motion, and the driver stops suddenly or uses care conformable to the
circumstances to avoid injury, the company is not liable: Stone v. Dry
Dock etc. R. R. Co., 46 Hun, 184; but if an accident occurs to a child
suddenly running under a street-car b^^cnuse the gripman neglects his
duty to keep his eyes on the track bciure iiim, hy gazing at houses oi

Digitized by


482 Barnes v. Shbevepobt City R. R. Co. [Louidaiiai

other objects while the car is in motion, his employer is liable: Schnnr
▼. Oitiaena' Traction Go., 153 Pa. St. 29; S4 Am. St. Rep. 680. This if
the case where a coal wagon and a motor-car, propelled by gravity, are
moving in opposite directions, not at a street crossing, and a child five
jrears of age rushes from behind the wagon and in front of the advanc-
ing motor, thereby re ;eivinL; injaries, though the motorman applied
the braJLe and then reversed the power; Ogier v. Albany R^., Si Hun,
486. So, where a b3y five ani a naif years old, and who is throwing
stones at his brother in the street, unexpectedly, and without any
warning, runs from the pavement against h moving car passing at the
time, not at a crossing, and is injured before the car can be stopped,
especially where the gripman has his "eye on the boy," and is trying
to avoid an accident: Chilton v. Central Traction Co., 152 Pa. St. 425.
Again, an intelligent, strong, healthy boy, nearlv ten years old, and
perfectly familiar with the locality, the railroad, and its operation.
Attempts to run in front of a horse-car not at a crossing, and there is no
reason to assume that he will not get across, even if seen by the
driver, but the boy stumbles and falls on the track, and is injured and
killed, the street-car company is not liable, where the driver applies
the brake as quickly as possible. No negligence can be attributed to
the driver because he did not apply the brake before the boy fell, be-
cause then, for the first time, the peril commenced and became appar-
ent : Fenton v. Second Avenue R. K. Co., 126 N. Y. 625. So, if a little
girl seven and a half years of age starts from the pavement to run across
the street, not at a crossing, diagonally in front of a car, and the driver
calls out to her, '*Hev, there 1" to which a reply is made, "Never
mind ; I can get past," a nonsuit is proper, in an action against the
company for running over and killing her: Flanagan v. People's etc.
Ry. Co., 163 Pa. St. 102. But, though a child of tender years runs sud-
denly under a street-car, yet if the gripman was not attending to his
business, and was standinj? on the side of the cab with one hand out of
the window looking toward the houses, and did not have hold of the
grip or brake, and paid no attention to persons who halloed to him
when they saw the danger of the child, it is proper to submit the case
to the jur^ for them to determine whether or not the injuries suffered
by the child were due to the negligence of the railway corporation :
Schnur v. Citizens' Traction Co., 153 Pa. St. 29; 34 Am. St. Rep. 680.
It is the duty of a street-car driver to keep a diligent lookout both for-
ward and to the right and to the left, "but it is practically impossible
that he should have his head turned toward three points of the compass
at one and the same moment." Hence, if a little girl ten years old runs
from behind an ice wagon in the street upon the track, and is injured,
there can be no recovery, if the driver immediately pulls up on seeing
her, even if he was temporarily looking at the time in a contrary direc-
tion. Negligence cannot be predicated upon the bare fact that the driver
is looking in any particular direction at any particular moment. There
can be no recovery in such cases without showing that the driver did
somethins; which he ought not to have done, or omitted to do some-
thing which he ought to have done: Kennedy v. St. Louis R^. Co., 43
Mo. App. 1; and it is for the jury to judge whether the failure of a
schoolchild to look or listen before attempting to cross a street-car track
shows a want of that degree of care whicn could reasonably have been
ezpecte 1 of such a child : Wallace v. Suburban Ry. Co., 26 Or. 174, and
cases there cited. A girl fourteen years of age who attempts to run
across a street between crossings, and passes behind one car but gets in
front of another approaching from an opposite direction on the other
track, is chargeable with contributory negligence, and can maintain no
action for injuries received by her act: Thompson v. Buffalo Ry. Co.,
145 N. Y. 196.

Street-car drivers must exercise care in putting children off the oars.
If a driver permits a boy seven years old to ride with him upon the
front platform for some distance, he has no right to order the boy to get
off without giving him an op(K)rtunity to obey the order with safety.

Digitized by


June, 1895.] SuccEssioir or Bababsi. 433

Hifl oondaet in such a case, with respect to negligence, Is a qaeation for
the Jury: McOabiU y. Detroit City By. Co., 06 Mich. 156. Eren trea-
paners are entitled to humane consideration. So, if a giri eleven years
old sets upon the front platform of a street-car while it is in motion,
and nolds on by the handrails, and the driver, whipping np his horses
and putting down his whip, beats her upon the hands, and finally
pushes her off the car so that she falls under it and is run over, she
may recover: fiarre v. Reading City etc. By., 166 Pa. St. 170. A
street-car company is liable for its driver's nesligence toward a child
causing injury or death, where it is on a car under circumstances enti«
tling it to the same care as a passenger ; Muehlhausen v. St. Louis B. B.
Co., 91 Mo. 8S2. A railroad company may also be liable for an injury
to a child occasioned by its fretting off the car on a front platform in
violation of a rule, if the car u not properly manased. Thus, the plain-
ti£f, a bov ten years old, was riding on one of tne defendant's street-
cars, with the knowledge and consent of the conductor and driver, but
without paying fare. They had no authority to carry passengers free.
The driver requested him to take a package from the car and deliver it
at the place where he was intending to get off. He took the napers and
without notice to the conductor or driver, while the car was in motion,
and before it reached the crossing where it usually stopped, he jumped
off the front platform, and was thrown under the wheeland injured. A
printed notice was posted conspicuously in the car, forbidding passen-
gers to stand upon, or get on or off at, the front platform, or to get on
or off the car when in motion, and declaring that the company would
not tie responsible for any accident happening thereby. The trial court
found that the injury was caused bv the careless diiving and manage-
ssentof the car; that the plaintiff, in getting off, under the circum-
stances used as much care as could be expected from a person of his
age, and that no contributory negligence on his part was proved. Upon
these findings it was held that the plaintiff was entitled to recover t
Brannan v. rairhaven etc. B. B. Co., 46 Conn. 284 ; 29 Am, Bep. 079«

Succession of Babassb.


A TRBATY 18 THB BUPBBMB LAW of the land, MndlBf all
eourts, state and federaL

MAKING PC WEB.— A provision in a treaty between this country and
France giving French heirs the right to be represented here by the
consul of their country relates to a subject within the treaty making
power, and must prevail if in conflict with a state law.

TOBNBY FOB FOBEIGN HEIBS, WHEN.— Under the treaty be-
tween this country and France providing that, upon the death of a cit*
isen of France In the United Statea without any testamentary executor
hj him appointed, the consul shall have the right to appear, personally
or 1^ delegate, in all proceedings on behalf of the absent or minor
heirs, a delegate appc^nted by the French consul in Louisiana to rep*
rs a e n t the interests U Frendi heirs in a succession there is aa agent
of sndi bdrs. In such a case there Is no necessity to appoint an at-
lonwy to represent them, and a court has no power to do so.

appoint an attorney for absent heirs, when the heirs ass ]

AM. SI. Bar^ Vol. XLIX.— »

Digitized by


484 Succession of Rababbs. [LouiBiana,

Determination of right to represent absent heirs. BabasBe, a
native of France, died in New Orleans on February 26, 1895.
He was at that time a citizen of France. He left heirs residing
in France. The deceased also left a will. The succession was
opened in the civil district court for the parish of Orleans on
February 27, 1895, by a mandatory of one of the heirs, claiming
the administratorship, and who was subsequently appointed
dative executor. The French heirs were not represented by man-
datories or representatives of their own selection. The inter-
vener, as delegate of the consul of France, filed a petition of in-
tervention and opposition, claiming, as a matter of right, to rep-
resent the said absent heirs. The judge a quo dismissed this
intervention and opposition, from which judgment an appeal
was taken.

J. Numa Augustin, for the appellant.

Theodule Buisson and Chretien & Suthon, for the appellees.

**** MILLER, J. The deceased, a resident of New Orleans,
left heirs residing in France. Our treaty with that country pro-
vides, in case of death of any citizen of France in the United
States without any testamentary executor by him appointed, the
consul shall have the right to appear, personally or by delegate,
in all proceedings on behalf of the absent or minor heirs. The
stipulation is reciprocal, applying to estates of Americans dying
in France. The French consul here appointed a delegate to rep-
resent the French heirs, and he applied for recognition to the
civil district court, in which the succession was being adminis-
tered. That court denied the application, and appointed an
attorney for the absent heirs. From the judgment diflmissing
the intervention of the appellant claiming recognition as dele-
gate, he prosecutcB this appeal.

There is a motion to' dismiss the appeal, on the ground there
is no pecuniary interest involved. There is involved a question
of the construction and the execution of our treaty with France
in respect to the interest of French heirs in a succession of over
one hundred thousand dollars. The motion is denied.

If the treaty is susceptible of the construction of the appellant,
the result would be to avoid the appointment of the attorney for
the absent heirs, and require the recognition of the appellant as

Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 51 of 121)