
    CHARLESTON.
    Schoonover v. Baltimore & Ohio Railroad Co.
    Submitted January 17, 1911.
    Decided October 24, 1911.
    1. Judgment — Entry Nunc Pro Tunc.
    
    , A final judgment, rendered hut not entered by reason of in-advertency of the clerk, may be entered by a nunc pro tunc order at a term of the court subsequent to the one at which it was rendered, provided the evidence of the rendition thereof is sufficient, (p. 562).
    2. Appeal and Eeror — Record—Correction.
    A writ of error to such a judgment awarded and perfected before entry thereof may be sustained by the filing of a supplemental record in the appellate court, showing amendment by such nunc pro tunc order, (p. 562).
    3. Negligence — Injuries to Minors — Contributory Negligence.
    
    In an action by an infant between eleven and twelve years old against a railroad company, to recover damages for an injury sustained by the former on a highway crossing, or one treated as such, by the negligence of the latter, the trial court may hold the plaintiff barred by his contributory negligence, upon a proper application for such ruling, if the facts and circumstances of the case warrant it. (p. 564).
    4. Same — Injuries—Contributory Negligence — Children.
    In the use of highways, children must exercise such reasonable care, caution and prudence-for their safety as may he expected from them in view of their immaturity. The standard or measure of duty in each case is determinable by the capacity ordinarily possessed and exercised by children of the age and development of the class to which the individual 'belongs, (p. 565).
    5. Railkoads — Operation—Injuries at Grossing — Injury Avoidable Notwithstanding Contributory Negligence.
    
    In passing its train over a crossing provided by itself for public use, though not legally a public crossing, a railroad company must comply with the common law requirements, imposed for the safety of persons using public crossings, (p. 5C8).
    C. Same.
    Though a person injured on such a crossing by a train was himself in fault, his negligence does not preclude recovery for the injury, if the servants of the railway company in charge of the train could have discovered the danger and prevented the injury hy keeping a look-out on the crossing and checking or stopping the train. In such case, their failure of duty is the latest negligence and the proximate cause of the injury, (p. 569).
    Error to Circuit Court, Cabell County.
    Action by Clifford Schoonover against the Baltimore & Ohio-Railroad Company. Judgment for defendant, and plaintiff brings error.
    
      Reversed.
    
    
      Williams, Scott & Lovett, for plaintiff in error.
    
      Vinson & Thompson, for defendant in error.
   POEEENBARGER, JUDGE :

In an action of trespass on the ease, brought by Clifford Schoonover, against the Baltimore & Ohio Railroad Company, in the circuit court of Cabell county, for the recovery of damages for a personal injury, alleged to have been wrought by the negligence of the defendant, there was a demurrer to the evidence of the plaintiff which the court sustained, after a conditional verdict had been found by the jury, assessing the damages at the sum of $3,000.00. Agreeably to the finding of the court upon the law of the case, an order was entered, sustaining the demurrer and giving the defendant a judgment for costs, but not dismissing the action. However, a writ of error was awarded and the case submitted to the court as upon a final judgment. That this was not a final judgment in appellate law appears from Epstein v. Totten, 63 W. Va. 602; DeArmit v. Town of Whilmer, 63 W. Va. 301; Ritchie County Bank v. Bee, 60 W. Va. 386; Corley v. Corley, 53 W. Va. 143; Hannah v. Bank, 53 W. Va. 82.

After submission of the case in this Court, however, the circuit court entered an order, reciting rendition of judgment of nil capiat at the time of the entry of the order above described and clerical omission to include it in that order, and entering the judgment name pro■ tunc. This raises the question of power in the trial court to amend its record, after perfection of a writ of error and submission in the appellate court.

Legally, the inquiry divides into two parts, the first of which is, whether a final judgment can be entered nunc pro tunc; and the other, whether an amendment so made will sustain the writ of error. Such an amendment may be made. Vance v. Railway Co., 53 W. Va. 338; Ninde v. Clarke, 4 Am. St. Rep. 832, note, pp. 828-30. In this valuable note we find the following proposition, sustained by numerous decisions: “A court -which has ordered a judgment which the clerk has failed or neglected to enter in .the record has power, even after the term at which it was rendered has passed, to order the judgment so rendered to be entered nunc pro tunc, provided there be satisfactory evidence that the judgment was rendered as alleged and of the nature and extent of the relief granted by it.” Sufficiency of the evidence upon which the amendment was made is not questioned. That an amendment of the record of a case in the trial court, pending a -writ of error, may be carried into the record in the appellate court and made effective there, is also affirmed by authority: After such an amendment, carried up as aforesaid, the appellate court will act upon the record as corrected. Wells v. Smith, 49 W. Va. 78; Gauley Coal Land Ass’n v. Spies, 61 W. Va. 19; Hopkins v. Railroad Co., 42 W. Va. 535; 18 Enc. Pl. & Pr. 958. We find no authority inconsistent with this view. Hastily read, Tatum v. Snidow, 2 H. & M. 542, may seem to be so, but it is not. Though the subsequent order therein entered recited omission of entry of the judgment by the clerk, the judgment was not entered nunc pro tunc and virtually dated back, as in this case, so as to work an amendment.

Reason and justice as well as authority sustain -our conclusion. The defect resulted from, mere inadvertence and was purely technical. Until the hearing on the writ of error, both parties proceeded under the impression .that the judgment was technically, as well as substantially, final. Discovery of the defect then was matter of surprise to them as no doubt it was to the trial court on the application for amendment. Correction thereof by amendment saves time and expense and faciliatates disposition of business, without working injury in any respect.

The plaintiff:, a boy about eleven and a half years old, was so badly injured on the track of the defendant company that one of his legs had to be amputated below the knee. The injury o'ccurred a.t a point used as a crossing, but the status of that crossing, is an element in the case. It would be in the. line of 17th Street of the city of Huntington, if extended northward so as to cross the railroad, but had never been established by the city as a street or public crossing. The general direction of the railroad at that point is east and west. On the southside thereof and 'west of 17th street, running to the railroad at right angles, there was a park, boarded up along the railroad on one side, and along said street on another, in which a game of baseball was played on the day of the injury. The grandstand, occupied by spectators, was in the angle. Occasionally, foul balls would go over the fence, and boys on the outside recovered and returned them, in consideration of which they were admitted into the park. The plaintiff and a number of other persons were on the outside, some watching the game through cracks in the fence and others looking over the fence from the tops of box-cars, standing on a switch on the opposite side of the railroad track. A foul ball having gone over the fence and diagonally cross the railroad in a northeasterly direction and stopped a short distance beyond, from fifteen to thirty feet, the plaintiff ran after it, and haying obtained it, ran back on the track, whence he threw it into the park, halting momentarily, some of the witnesses say. At this time, a train consisting of an engine and two cars, drawn by the engine running backwards, was approaching from the east at the rate of ten or fifteen miles per hour. When the boy threw the ball, in apparent ignorance of its approach, the engine was not more than 60 or 70 feet distant. The train 'was going west and he cliagonally across the track in. a southwesterly direction. Hence his face was turned from the train, but he went on the track without looking for an approaching train or engine. Wholly absorbed in what he was doing, he was oblivious of the train. Some witnesses testify that they and others, seeing the danger, called to him but are unable to say he heard them, as there was much noise and confusion both inside and outside of the park. As he left the track the train, rushing on, caught his right foot and leg. Some distance east of the place of the injury there was a cattle pen, near which some witnesses say there were two long blasts of .the whistle of the approaching engine, one east and the other west. Others say they never heard them. There is no evidence that any bell was rung as the train approached the crossing, and all the witnesses agree that just about the time the boy was struck two or three short sharp blasts from the whistle were heard. There was nobody on the tender of the backing engine, nor does it appear that anybody on the engine kept a lookout upon the crossing.

That the train was running at a higher rate of speed than the city ordinance permitted, seems not to be controverted. At any rate, it could have been inferred from the evidence. That a lower rate of speed would have avoided the injury is another inference justified by it, since the boy was almost out of danger when the train struck him. Therefore, we may safely assume negligence on the part of the defendant company.

Whether the conduct of the plaintiff amounted to contributory negligence is an important inquiry in the case. Had he been an adult, his contributory negligence, in going upon the railroad track, directly in front of the approaching train, plainly in view, without looking in either direction along the track, or in any way exercising his powers of observation for his own safety, would be clearly manifest. Reidel v. Traction Co., 63 W. Va. 552. But this boy was only about eleven years and five months old. He testified in January, 1906, that he had attained his thirteenth year in the preceding November. The action was brought at October Rules, 1904, and the declaration avers that he was hurt on the 23rd day of April, 1904. As to whether a person of that age is sui juris within the law of negligence, and how the fact is to be determined, there is some conflict among the authorities. In some jurisdictions, the courts bold that, between the ages of seven and fourteen, there is a presumption of a lack of prudence, foresight, caution and comprehension of danger which carries every case to the jury and denies to the court the power to say there was contributory negligence as matter of law. Trumbo’s Adm’r v. Street Car Co., 89 Va. 780; Railway Co. v. Quayle, 95 Va. 741; City of Roanoke v. Shull, 34 S. E. 34. Other cases, proceeding upon the same theory, will be found cited in the note to Barnes v. Railroad, Co., 49 Am. St. Rep. 400, 410. See also 3 Elliott on Railroads, sec. 1261, note 122. But this rule is by no means generally accepted. Numerous decisions declare'that in cases of injury occurring upon highways and railroads, failure of a child to exercise such care, caution and foresight as is 'ordinarily po-sessed and exercised by children of his. age will bar recovery for an injury thereby occasioned. In these cases, the measure or standard of care required is not that of adults, but of the class of persons to which the injured party belongs, and seems to rest upon the view that, in using a highway, provided for all classes of persons who are accustomed to go abroad without guardians or protectors, the traveler is bound to use, in the exercise of that right, such judgment and prudence as are usually and ordinarily possessed by persons of the class to which he belongs, and that failure to exercise the same constitutes negligence, whether he be' above or below the age of fourteen. This proposition is sustained 'by a decided weight of authority in all actions by infants for personal injuries, except those between master and servant. Railway Co. v. McDaniell, 43 Md. 534; Railroad Co. v. Hanlon, 53 Ala. 70; Railroad Co. v. Murray, 71 Ill. 601; Swift v. Railroad Co., 123 N. Y. 645; Hayes v. Gross, 162 Mass. 546; Wright v. Railway Co., 77 Mich. 123; Collins v. Railroad Co., 142 Mass. 301; Messenger v. Dennie, 141 Mass. 335; Id. 137 Mass. 197; Hayes v. Norcross, 162 Mass. 546; Stackpole v. Railway Co., 193 Mass. 562; Fitzhenny v. Traction Co., 8 Am. Neg. Rep. 288; Railway Co. v. Flanagan, 57 N. J. L. 518; Brady v. Traction Co., 42 Atl. 1054; Payne v. Railroad Co., 129 Mo. 405; Colcomb v. Railway Co., 100 Me. 418; Fenton v. Railroad Co., 126 N. Y. 625; Tucker v. Railroad Co., 124 N. Y. 308; Thompson v. Railway Co., 145 N. Y. 196; Railroad Co. v. Todd, 54 Kan. 551; Railway Co. v. Eininger, 114 Ill. 79; Masser v. Railroad Co., 68 Ia. 602; Normand v. Elec tric Co., 35 Queb. 329; Mowrey v. Railway Co., 51 N. Y. 666; Evans v. Mills, 119 Ga. 449; Young v. Small, 188 Mass. 4.

Practically all courts hold infants between the ages of seven and fourteen capable of contributory negligence. Those in which the view here announced does not prevail submit to the jury, upon the facts and circumstances, the inquiry whether there has been contributory negligence. The mere submission of the question asserts capacity of the infant negligently to contributo to his injury, within the meaning of the law, under certain circumstances. The difference or conflict respects a rule of practice, not principle, some courts saying the question is always one for the jury, and others that it is for jury determination only when the evidence makes it a jury question, under the rules of practice applicable to other questions. If the act of an infant plaintiff is so obviously dangerous that no- reasonable man can truthfully say children of his age do not ordinarily know it to be dangerous and 'voluntarily abstain from it, there is no more reason for submitting the question of contributory negligence to the jury than in the case of an adult plainly guilty of such negligence, and there is the same reason why it should not do so. Prudence and capacity to comprehend danger1 are not the only elements involved. These may be clear beyond doubt, as in the case of an adult. The defensive issue raised is negligence in which the age, intelligence and characteristics of the plaintiff are only factors. Hence it is fallacious to say that because these are inferior to those of an adult, the issue must be sub-matted to a jury. Though inferior in that sense, they may be amply and indisputably such as to hold the plaintiff to responsibility for his acts under the circumstances of the case. Inferiority to an adult in these respects does not absolve him from responsibility. If it did, the case could not even go to the jury on the question of contributory negligence. That defense could not be made. But practically all courts admit it except in the cases of very young children, deemed incapable of appreciating common or ordinary danger. The standard or measure of responsibility is lower than that for adults, but, if an infant plaintiff comes clearly up to it, there is no occasion for submitting his capacity to the jury as a doubtful question, and if, the danger encountered by him was so plainly obvious that one of his years must have appreciated it, or the duty omitted by him so clear and natural that he must be deemed to have been cognizant of it, the court should declare his contributory negligence, upon a proper application, as in other cases.

The basis of the conflict in authority seems therefore to arise from failure or refusal on the part of those courts which insist upon making the question of negligence on the part of an ■infant between the ages of seven and fourteen years, always one for the jury, to recognize any standard or measure of responsibility in children. That they have some intelligence cannot be denied. Nor is it possible to say they do not have enough to enable them to appreciate or comprehend certain forms of obvious danger or to know how to avoid it, or to feel a sense of duty under certain circumstances. If the court can say, and it does, as matter of judicial knowledge, that an adult ought to know certain things and be able to take adequate precaution for his own safety, why has it not the same power to say, as a matter of judicial knowledge, that children, of certain ages are able to comprehend and avoid certain kinds of danger? The adoption of the theory or view that a child must exercise such care, caution, prudence and foresight as children of his age ordinarily possess and exercise, malees the question of contributory negligence in the case of a child, treated as one of law for determination by the court, just as easy of solution as in the case of an adult, and the conclusion is reached by exactly the same process of reasoning.

That contributory 'negligence in cases of this class is frequently declared to be generally a question for the jury is not inconsistent with the conclusion here stated, for that is said of all cases involving this defense, and it is true. More cases of each class go to the juries than are decided by the courts. The expression means only that determination by the jury is the general rule and by the court the exception thereto.

This conclusion does not necessarily conflict with the principle declared in Bare v. Coal Co., 61 W. Va. 28, and Wilkinson v. Coal Co., 64 W. Va. 93, and other cases arising between master and servant, and vastly different in many respects from this. As between master and servant, there is a contractual relation. There is none here. These parties were strangers, standing -substantially upon an equal footing in respect to the use of a highway. The difference between the reciprocal rights of the plaintiff and defendant here and those between an adult and such a defendant, in a similar situation, is the requirement of more care on the part of the latter in its relations with the former, in view of his immaturity, lowering the standard of responsibility. Highway and railroad risks, dangers and reciprocal rights are matters of daily cognizance and experience with boys and with men. No presumption of their ignorance thereof can be indulged 'or supposed. They are not brought into or kept in contact with them by the compulsion or restraint of the railroad coinpanies or other persons using the highways. Boys employed in mills, factories and mines are held by their contracts to duties which necessitate unaccustomed precautions against danger and constantly expose them to hazards dangerous and unfamiliar. Frequent recurrence of these exposures and precautionary duties, incident to the performance of the work, requires vigilance, constancy and singleness and steadiness of purpose, characteristic of adults rather than children. That such ability, natural or acquired, is necessary to the protection of themselves and their fellow servants in such situations seems to be reasonably clear. Hence there is cogent reason for a higher standard or measure of capacity on the part of the infant in cases arising between master and servant. In service |he boy is charged with novel duties and exposed to unaccustomed hazards and charged with responsibilities like or very similar to those imposed upon adults. He has not grown up with them as he has with the hazards of the street," the play-ground and mere casual contact with men, structures, machines, animals, vehicles and other means of injury.

Without noting it or giving any reason for it, the courts seem to make this distinction. In cases between master and servant, in which the plaintiff is an infant under fourteen years of age, contributory negligence is seldom declared as matter of law. In other, cases, this result is of frequent occurrence, as will appear from an examination of the long list of decisions herein cited.

We have no doubt the plaintiff knew the danger of going upon a railroad track without looking for trains. His home was in Clay county on the line of a railroad and he was in Huntington at the time of the injury, attending the spring term of school at Marshall College. His situation and engagement at the time indicate possession, of the intelligence and discretion of bo}^ of his age, thousands of whom daily cross railroads, trolley lines and highways, exercising discretion and prudence requisite to their safety. o Hence the trial court properly held him guilty of negligence as matter of law.

But, if the servants of the railway company in charge of the train omitted a duty, performance of which would have avoided the injury, such omission must be deemed the proximate cause thereof, and the defendant is liable notwithstanding the plaintiff’s negligence. Though not established by the city as a public one, the crossing on which the boy was hurt was a way provided by the defendant company itself for travel across its tracks. It was at the end of a city street regularly established and maintained, and planked between the rails and on the outside thereof by the defendant, and a post with cross-arms, bearing the warning, “Hook out for the locomotive, Railroad Crossing”, stood near it. Under principles declared in Ray v. C. & O. Ry. Co., 57 W. Va. 330, this may have been such a crossing as required the statutory signals. Be that as it may, persons coming upon the track at that point were there by invitation, and the company owed them the common law duty imposed in favor of persons on a public crossing, since they were neither trespassers nor bare licensees. Elliott on Railroads, sec. 1154, sustained by ample authorities cited. Such common law duty includes maintenance of a look-out or other adequate means of avoiding collision at crossings, and failure to do so is negligence, constituting proximate cause of injury, even though the plaintiff himself was negligent in going upon the track, if the performance of such duty would have prevented injury. 2 Thomp. Neg. secs. 1596-7; Elliott, Railroads, sec. 1175. The principle has been recognized and applied in a crossing case as well as others by this Court. Riedel v. Traction Co., 71 S. E. 174; Washington v. Railroad Co., 17 W. Va. 190; Downey v. Railway Co., 28 W. Va. 732; Vance v. Railway Co., 50 W. Va. 338; McKelvey v. Railway Co., 35 W. Va. 500; Layne v. Railroad Co., 35 W. Va. 438; Raines v. Railway Co., 39 W. Va. 50. Opinions of witnesses vary as to the distance of the train when the boy came upon the track as well as the rate of speed; hut the jury could have found the distance to he fifty or sixty feet and the rate of speed twelve miles per hour, and also that injury 'would have been avoided by a checking of the speed of the train. Uncontradicted testimony was adduced, showing the engineer could have checked the speed almost instantaneously, had he seen the boy when he came on the track and adopted emergency precautions. It was also competent for them to infer that the engineer would have seen him when he came on the track, or even earlier, and apparently intending to come upon it, if he had performed the duty incumbent upon him in running his train over a crossing. Opposing this is evidence tending to prove the boy 'was struck almost as soon as he got on the track, and that the train was so close no assistance could be rendered him; but this is not conclusive. We are of the opinion, therefore, that the case should have been permitted to go to the jury and that the trial court erred in sustaining the demurrer to the evidence.

The judgment will be reversed, the demurrer to the evidence overruled and judgment rendered for the damages assessed by the jury and costs both in this Court and the court below.

Reversed.

Williams President,

(concurring):

I concur in the judgment, but not in the correctness of all the principles asserted in the opinion. I do not believe it accords with the weight of authority, and I know it does not with our own previous decisions, to say that the court can determine, as matter of law, whether or not an infant under the age of fourteen is guilty of negligence.' Fur do I acquiesce in the view that the relation of master and servant can have any effect to vary the rules of evidence respecting- negligence. Such relation may, and often does, determine relative duties. But once they are determined, it must be ascertained 'what is negligence in any given case, independent of any contractual relation. The law of negligence rests upon relative duties. The policy of the law forbids any one to contract against negligence. Everyone is bound to exercise reasonable care for his own safety and for the safety of others. He may by contract enlarge his duties, but he cannot lessen them, whether he be employer or employe. The degree of care required must be commensurate with the danger attending the business the party is engaged in, if he is employer, or comlmensurate with the amount of risk he has as-siimed, if be is employe. Negligence wbicb causes injury is a ’wrong, and the remedy therefor is by an action in tort. The duty to exercise care both for one’s own safety and the safety of others exists independent of contractual relations, and I can see no sufficient reason for applying one rule of evidence to prove what is negligence in one case, and a different rule to prove it in another. Of course, contractual relation may have the effect to create duties which did not before exist, but once the new duties are determined, the rules respecting the kind and quantity of evidence necessary to j>rove whether a party has failed in the performance of his duty, or not, are the same. In other words, an infant under fourteen years of age is no more capable of caring for Iris safety when he is unemployed than when he is employed.

According to the weight of authorities, and according to our own decisions, the question of negligence in an infant under fourteen years of age cannot be determined, as matter of law, by the court, but must be left to the jury to decide, under proper instructions by the court as to the principles of law to be applied in determining a fact. Negligence of an infant under fourteeh depends largely upon his capacitj'’, knowledge of danger and the degree of caution which a child of his temperament will exercise, even in the presence of a known danger. There are such variable quantities in children between seven and fourteen years of age, that the law provides no fixed standard by which to measure the negligence of all children between those ages. The same act which would constitute negligence in one child might not amount to negligence in another of the same age. By an unanimous opinion we held in Ewing v. Lanark Fuel Co., 65 W. Va. 726, that an infant under fourteen years of age is not presumed to have sufficient capacity to avoid danger, and that his capacity had to be proven in order to make out the defence of his contributory negligence. Now, if there is no presumption in favor of capacity, and the capacity is a question of fact essential to be proven in order to determine whether or not the child has been guilty of negligence, how can it be properly said that the court can determine the question of negligence as matter of law?

RobiNSON, Judge, concurs only in the syllabus and the result.  