
    D. Lee Mason vs. Minneapolis Street Railway Co.
    Submitted on briefs June 26, 1893.
    Reversed July 20, 1893.
    Evidence Sufficient to Go to the Jury.
    
      Held, that upon the evidence in this case the questions of negligence and contributory negligence should have been submitted to the jury.
    Appeal by plaintiff, D. Lee Mason, from an order of the District Court of Hennepin County, Sea-grave Smith, J., made February 18, 1893, denying his motion for a new trial.'
    Plaintiff brought this action in behalf of.his minor son, Fred L. Mason (1878 GL S. ch. 66, § 34). The boy was bom November 15, 1886. He was injured August 28, 1891. When plaintiff’s evidence was all in, the court on motion of defendant, the Minneapolis Street Eailway Company, dismissed the action. Plaintiff made a case containing exceptions and asked a new trial. Being denied, he appeals.
    
      Larrabee & Gammons, for appellant.
    1st. There was evidence, if the same had been submitted, from which a jury would have been justified in finding that defendant was guilty of negligence which caused the injury to the infant. 2nd. The boy was not guilty of contributory negligence sufficient to defeat his recovery, if defendant was negligent. He was not at years of discretion. 3rd. The law of this state is that the negligence of parents is imputable to the child. But the jury, on the evidence, could well have found that the parents were not guilty of any negligence in the circumstances.
    
      
      Koon, Whelan d Bennett, for respondent.
    When, through his own tort, an infant causes an injury to himself, he ought not to be permitted to recover from others for such injury, unless their acts were of such a character as to amount to wanton or willful misconduct, and were the immediate cause of such injury. Pennsylvania B. Co. v. Morgan, 82 Pa. Sfc. 134; Scheffler v. Minneapolis d St. L. 11. Co., 32 Minn. 518; Locke v. First Div. St. Paul d Pac. R. Co., 15 Minn. 350, (Gil. 283.)
    Doubtless it was the duty of the motoneer to watch this child and prevent his getting in front of the car, or to stop the car in case- the child got in front of it. But he was not bound to neglect the management of his motor, to watch the side of his train after it had safely passed this child, at a distance of several feet from him, to see if he would dd such an extraordinary and unreasonable act as to attempt to catch onto the hind car, and thus slip under its wheels. He was not bound tó stop his car in the street on the mere supposition that the child might possibly do such an unreasonable and unexpected thing. Bulger v. Albany By., 42 N. Y. 459; Hestonville P. By. Co. v. Connel, 88 Pa. St. 520.
    In City of St. Paul v. Kuby, 8 Minn. 154, (Gil. 125,) and Railroad Co. v. Glaclmon, 15 Wall. 401, a child, even as young as the one in question, is held to some responsibility for his own safety.
   Mitchell, J.

Action to recover damages for personal injuries to plaintiff's infant son, caused by the alleged negligence of defendant’s servants in operating one of its cars. The only question is the correctness of the action of the trial court in dismissing the case when plaintiff rested.

There was evidence tending to prove the .following facts: A train consisting of a motor and trailer was going north on Nicollet avenue at the rate of about three miles an hour. When it was a short distance north of Twenty-Sixth street, plaintiff’s child, a boy aged four years and nearly ten months, who had been playing on the sidewalk quite a little distance north of where the train then was, started and ran out into the street, with his hands or arms extended out in front of him, as if to intercept the approaching cars, or, -as expressed by some of the witnesses, "as if be was going to catcb bold oí something.” Tbe motoneer stood on tbe front platform of tbe motor, and, so far as appears, was tbe only employe on tbe cars wbo saw tbe child until after tbe accident. While tbe child was still from twelve to seventeen feet from tbe track, and tbe bead of tbe train about tbe same distance south of him, tbe motoneer, seeing him, both “hollered” and motioned to him to go back. In view of tbe distance traversed by tbe cars after this and before tbe accident, it would seem that tbe child must, after tbe warning, have somewhat slackened bis pace, but tbe testimony of tbe bystanders is that be continued to run, in tbe same attitude as before, until be reached tbe moving cars, which by this time bad all passed that point, except tbe rear of tbe bind car; the entire length of tbe two cars being about fifty-two feet. Tbe side of tbe car next to tbe child was closed or covered by a screen , or netting to prevent passengers from getting ■ off and on at that side. On reaching tbe cars, the child attempted to catcb bold of this netting just in front of tbe bind wheels of tbe rear car, and in doing so fell or was thrown down with bis foot across tbe rail, which was crushed by tbe wheel of tbe car. It also appeared that after tbe motoneer bad warned tbe child he left bis brake, stepped to one side, and turned bis bead, as if looking back, watching tbe child. It does not appear distinctly bow long tbe motoneer continued to watch tbe child, or at what exact point of time be turned and applied tbe brake to tbe cars, but from tbe evidence tbe jury might have found that be did not attempt to stop tbe cars until tbe boy was thrown down, or at least until be saw that tbe boy was in tbe act of laying bold of tbe cars, when be quickly turned around and applied tbe brake, and brought tbe cars to a stop within a distance of from twenty-five to fifty feet. The cars could have been stopped in about twenty-five feet by tbe application of tbe brake, and, in case of necessity, in four or five feet, by reversing tbe current of electricity. We do not understand, however, that it is claimed that the motoneer was negligent in not stopping tbe cars quickly enough after be applied tbe brake, but tbe contention is that, on seeing a child of this tender age approaching in a manner indicating that be was going to attempt to take bold of tbe cars, be ought, in tbe exercise of due care, to have stopped them before tbe child reached them. To determine when tbe evidence on a question of negligence makes a case for tbe jury.is not always an easy matter. The present case is very near the line, but, after a good deal of consideration of the matter, and not without some hesitation, the majority of the court have arrived at the conclusion that the question of the motoneer’s negligence should have been submitted to the jury, and for the following reasons: They think that the jury might have found from the evidence- that the motoneer had good reason to apprehend that, notwithstanding the warning, the child was going to attempt to lay hold of the car, and, if so, that it was a fair question for the jury whether or not, in view of his very tender age, reasonable care required the motoneer to stop the cars before the child approached near enough to do so. We are also of opinion that, in view of the child’s youth, the question whether he was guilty of contributory negligence was also one for the jury.

(Opinion published 55 N. W. Rep. 1122.)

Order reversed.  