OREGON-WASHINGTON R. & NAV. CO. v. ROMAN, 293 F. 666

HUNT, Circuit Judge (after stating the facts as above). The principal assignments of error go to the refusal of the court to sustain the motion for a directed verdict. But we are of opinion that the court was right in submitting the issues to the jury.

While the hooks contain cases wherein, under the particular facts presented, the courts have held that children crossing railroad tracks may be guilty of contributory negligence, nevertheless there are certain general principles now so well ingrafted upon the law of negligence that mere statement of them will demonstrate their applicability to the facts surrounding the injury to young Edgar Roman. The case is as a matter of cour.se to be considered upon the premise that the railroad had a right to move its cars, and, if there had been a fence across the path, a different situation would have been involved.

But, where the- company has knowledge that the public, including children, habitually uses a path to and across its tracks in a city, and without warning sign or objection permits the public to enjoy the privilege of using the path over its tracks in going from one point to another, there is an acquiescence, and a child who uses the path and crosses the tracks is not ipso facto a trespasser, but is to be regarded as a licensee, to whom the company owes the duty of exercising reasonable care in moving its cars and engines so as to protect him from injury.

By its acquiescence the company is in a position where it cannot rely upon the doctrine that the child who uses the crossing does so at his own peril. Far more just is it to say that the rules of ordinary diligence control — diligence which is reasonably commensurate to the dangers reasonably to be anticipated. It was for the jury to consider whether, if there had been a man on the last car, or even if there had been the sounding of whistles, the accident would probably have been averted.. Panama R. Co. v. Pigott, 254 U. S. 552, 41 Sup. Ct. 199, 65 L. Ed. 400; Baltimore & Potomac R. Co. v. Cumberland, 176 U.

S. 232, 20 Sup. Ct. 380, 44 L. Ed. 447; Northern Pacific R. Co. v. Chervenak, 203 Fed. 884, 122 C. C. A. 178; Cahill v. Chicago, Milwaukee & St. Paul R. Co., 74 Fed. 285, 20 C. C. A. 184; Roth v. Union Depot Co., 13 Wash. 525, 43 Pac. 641, 44 Pac. 253, 31 L. R. A. 855; Taylor v. Canal Co., 113 Pa. 162, 8 Atl. 43, 57 Am. Rep. 446. Nothing in Olson v. Payne, 116 Wash. 381, 199 Pac. 757, conflicts with the views expressed. The facts there were very different, and the court well said: “Each case must be decided upon its own peculiar facts.” Nor could the court say that the boy was negligent in going upon the track.

Steele v. Northern Pacific Ry., 21 Wash. 287, 57 Pac. 820. The question was for the jury, particularly in view of direct testimony to the effect that the boys stopped, looked, and listened before they went across the track. Assuming that the negligence of the parents could be imputed to the child, a position that may well' be doubted, in no possible way was-it prejudicial to the plaintiff in error that the court submitted the question of the negligence of the parents to the- jury.

The parents could not be held guilty of negligence, unless they failed to exercise reasonable care, and the court charged to that effect. Error is assigned because, over the objection of the defendant, the court permitted a witness to answer the question: “Did you have any knowledge that the public was using this path ?” Witness answered: “Yes, sir.” On cross-examination witness testified that he left the employ of the company in June, 1917, or 1918, which was four or five years before the accident.

Witness was for years an employe of the defendant company at Seattle, and testified without objection that the path had been used by children and by people gathering wood, and that there was nothing to keep them away from the tracks. From all that appears, the knowledge of the use as testified to may not have been confined to the time that witness was in the employ of the railroad, and, even if it were, its effect merely carried the evidence of use farther back than the times fixed by other witnesses, and could not have been prejudicial.

Plaintiff in error excepted to the refusal of the court to instruct the jury that if they found that a footpath across the track was acquired by user, and that one traveling across the same was not a trespasser, then “any material deviation from said footpath in crossing said track would constitute the party making such deviation in crossing said track a trespasser thereon.” The request was founded upon the evidence that, when the boys reached the track and found the last car of the train directly in front of the intersection of the path by the track, they walked to the end of the car and started to cross.

The requested instruction but presented a phase of the question, whether under all of the facts and circumstances the boy Edgar was a trespasser and assumed the risk of crossing where he did. However, the court gave the law applicable concerning trespass and carefully stated that the boy was bound to use ordinary care, and that if, because of doing some act that an ordinarily careful boy would not have done, or omitting to do what an ordinarily careful boy would have done under the circumstances he was injured, there could be no recovery.

With such clear statements of the law the court was not in error in refusing the requested instruction. The final contention of the plaintiff in error is that neither the plaintiff, nor the plaintiffs, had legal capacity to sue. As .the record fails to disclose that defendant below demurred to the amended complaints upon the ground that neither plaintiff nor plaintiffs had legal capacity to sue, or upon any other ground, the question now raised is really not for decision. Remington’s Comp. Code Wash. § 259; Birmingham v. Cheetham, 19 Wash. 665, 54 Pac. 37; James v. James, 35 Wash. 655, 77 Pac. 1082 ; 20 R. C.

L. 699.

Furthermore, defendant below took no exceptions to the instructions of the court, explaining that there were two statutes of the state of Washington which were pertinent — one, which provides that the administrator of the estate of a deceased child may sue to recover damages where the parents of the child are living and dependent upon the child for support; and another, which provides that if a child dies by reason of injuries inflicted, and has suffered pain, the right of action does not end with the death of the child, but survives, and the parents who were dependent upon the child for support may sue and recover what the child could have recovered under such an action, such recovery being limited to damages for the pain and suffering that the child endured between the time of his injuries and his death.

Under the decisions of the Supreme Court of Washington it would seem that the actions were properly brought. In Machek v. Seattle, 118 Wash. 42, 203 Pac. 25, the action was brought by the administrator of the estate of deceased minor. It was alleged that from the time of her injury until her death she endured pain and suffering, and that, as the deceased was without issue, the action was brought in favor of the father and mother, who, at the time'of the death, were dependent upon the child for support. Demurrer to the complaint was sustained.

The Supreme Court considered the various statutes pertinent to the question of the right of action, and held that the administrator could maintain an action for the benefit of the parents to recover the amount that would have been contributed by the deceased to their support, such amount not being limited to what would have been furnished during the minority only, or that the parents themselves, whether dependent or not, could maintain an action in their own names for the loss of services of the minor from the time of the loss occurred until the minor would have arrived at her majority.

The court then added: “And in addition to either one of the foregoing actions under either sections 183 or 184, the administrator could maintain an action under

section 164 in favor of the dependent parents for the damages suffered by the deceased from the time of the injury until death,” and held that such action is entirely independent of actions under either

section 183 or 184 and could be concurrently maintained with actions under either one of those sections. The judgments are affirmed. <Ss»For other eases see same topic & KEY-NUMBBR in all Key-Numbered Digests & Indexes