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uld be in the care of his second ti ly objection to whom was that ung, and without much experient re of children. In that case it sa at a father, at his wife's funeral
, a at he be left alone with her remize o brothers of the wife remained i pm, and one of them requested the lit consent, in the name of his wife, tri puld have the custody of the intes i e father remained silent, and card pthers said to him that, it be mal pak, to shake hands. The father test ads, and after the funeral left the di eir care, where it remained tor 21 e father, during such time, for imed the right to its custody. Ito It he had not surrendered his right to
stody of the child.
RanLROAD COMPANY – RELIES AO VALIDITY OF RELEASE.-In Chicag gton & Quincy R. R. Co. v. LE 1. Rep. 439, the Circuit Court de
the Eighth Circuit, has held ion against a railroad company de employees to recover damages here aries through negligence
, a ples ployee had accepted benefits as an a relief association organized by py, under an agreement that del inquished his right of action, de m a valid defense when it fait it, if the association was at any tice funds to meet its obligations to t member could maintain an active
company, or fails to set out there nt between the company and its cu h such fullness and certainty that ly be able to see that the air
and reasonable, and not again icy, nor voidable for want of valul
1, Circuit Judge, is worth quoting ning that contracts of this chase
id, this case is rightly decided pund stated in the opinion. cts, in so far as they attempti
road company from liability to icted on its employees through Ice, are without sufficient and inst public policy, and mai al
mately be so declared by all couns
lum, while not consonant witte
towns are bound to protect travelers against such dan-
ligation to light its streets, where they are safe and convenient for travel the whole width, unless the duty to do so is imposed by its charter. The court says:
The grounds of negligence alleged are (1) that the defendant city had neglected to build a fence or rail. ing along the edge of this street, to prevent the tray. eling public from falling into the marsh; (2) that defendant neglected to furnish lights to enable trayelers to avoid this dangerous place. There was no claim made that the street was improperly or unskillfully graded, or that the embankment was not properly constructed. Plaintiff was perfectly familiar with the street and neighborbood, with the location of the house, and that it was near, or, as he testified, alongside of the marsh. One of two things quite conclusively appears, viz., that he allowed his horse to go to the place of the accident unguided, or else that he drove the horse there himself. The undisputed evidence showed, by the wagon tracks, that, when nearly opposite the place of accident, bis horse turned nearly at right angles with the highway, and in so doing, if he was in the traveled part of the road, he must have passed over the gutter, three feet wide, and the sidewalk, ten feet wide, before reaching the edge of the street, from which point he was precipitated down the embankment. There was no snow in the street, but some snow and mud in the gutter; but he stones in the gutter could be readily seen by day. ight. Evidently he supposed that he was nearly opposite the house of Mrs. McCusick, his place of destination; but in driving, or permitting his horse to turn, from the main track too soon, and allowing him to go too far, the accident occurred only a few feet from Mrs. McCusick's house. The plaintiff's famil. iarity with the street, the McCusick house, and the embankment, and the manner in which the horse was managed, were impurtant factors in the case, all of which were admitted; and all the facts appearing show conclusively that plaintiff was guilty of negligence in his conduct, resulting in being precipitated down the embankment, and which caused the injury. If he saw fit, on a dark night, as this was, to encounter the risk of going with his horse and wagon to Mrs. McCusick's house, and thus pass beyond the limits of a properly and skillfully graded street, without any latent or patent defects in it, and the injuries received were beyond the line of such street, we do not think the city liable.
This court has already beld in the case of Miller v. City of St. Paul, 38 Minn. 134, 36 N. W. Rep. 271, that a city is under no obligation to light its streets, and a mere neglect to do so is not a ground of liability, un. less the charter expressly imposes the duty. This is the general rule, and, if there are exceptions, the facts herein do not bring this case within the exception. Nor are towns necessarily bound to fence, or erect barriers, to prevent travelers from getting out. side of the road or way, 2 Dill. Mun. Corp. (4th Ed.), section 1005. The reason for the rule is well stated, in cases of this kind, in Sparhawk v. City of Salem, 1 Allen, 30, as follows: “It appears that the highway in question was safe and convenient for travelers throughout its entire width, and the land adjoining it was also sale and convenient to travel upon. After getting entirely outside the highway in safety, the traveler must proceed still further in order to reach a dangerous place. If Le reached that place, and was injured, the want of a railing was remotely, and not mmediately, connected with the injury. If cities and
20 obly two titles seserted, establishe na cintor the damages suffered joint riz!
thich passes to oibers by ery must be repe. in case of the death of by sone al
E' aber is an action for dam. the right o! tante parents on account of tire in al!
ar an action by the par- | injured b.i. 120 child's services. There considered lah damages suffered by beneficiary ale prents' right for damages sues as su
rareat in the loss of the child that the co se nese two rights may pre- one is a dtle caibe four different aspects said is, that and lod there is still another repre-enta?
fata plich the case might be that the u antere a minor has neither that right
urte, intiz ander the care, contended by 24. sed protection of its best which wola
reaires, and one of these himsell sue and ontributory negligence that he can on te nd, that element of a negligence, des being guilty of contributors
can or shou es exist, but it is a case of tributory !
gore on the part of one of ian-custo ha a bez brianes. Many of the delle importa keras die vjew is endorsed by some that belt thi And Diskt recent text-writers-
corporation to the cop
IMPUTED WRONG AS THE SAME AF.
FECTS RAILWAY LAW.
on a dat child, the contributory mental inte
al sud u one is a good defense these organi
There are two notable instances wherein the act of one is imputed to another in railway law. The first is the case of the negligence of the parent or custodian of a minor being imputed to the minor. And the other is where the wrongful, malicious act of the employee is imputed to the master so as to subject the master to exemplary damages. In the case of the minor, there are four different aspects in which the subject may present itself. First. Where the action is by
BRIA 9 DEPAS parent guilty of condividuals f
quasi-publi file na bojury causing the death of | cerned in had the cases, hereto- | Hot or coil
hogenie, sles as administrator of
sa fiarther, and hold that the fact be run; the a realidiary, who is guilty of con
to the pul
armi). Second. Where the action is brought
Where the action is in the name of
Walters v. R. Co., 41 lowa, 71; Hartfield v. Roper,
by the sting as administrator them duties file alimenterial, is but a matter of private ente
il pencedere. And that it mat- | trains is ali
to buy the vice of administrator, | danger, the the minor suing by next friend (procheir
se rely mu beneficiary, and such
para os geh negligence is a defense that these Third.
Hot be true, then by
Debould be a defense on
ex contributory negligers; a rail
pa bang it is an old and well next of kin, "and the damages are assessed
blema. 5. E. Bep. 772: Bottoms v. from a trace
6.8. Rep. 798; Nisbit v.
switb speed. likest one of several joint danger to r
a place of ered as alwa
21 Wend. 615; Kay v. R. Co., 3 Am. Rep. 628; Grant
10,1L R A. 150; Loague
: Lilroad Cor. Gravecloses' Bp. 454; Glassey v. Bailway
Trenerz r. R.Co. (Pa.), 24 Am.
through the todian, is
2 Chitty op 3 Loagué v
19:314; Bisbop, Non-con. F'itzburg, 160
ting a verdict for the defendants po for a new trial.
'UTED WRONG AS THEY
FECTS RAILWAY LAT.
here are two notable instalte: ict of one is imputed to another law. The first is the case of con e of the parent or custodias it : g imputed to the minor. Arden 'bere the wrongful, malicious si loyee is imputed to the master ect the master to exemplars dag le case of the minor, there 1?) it aspects in which the subjecten minor suing by next friend ! ). Second. Where the action k ne administrator of the deceases d. Where the action is in the
I* are bound to protect travelenizuzeta these cases there are only two titles asserted, established rule of pleading, that where a
by erecting railings to prevent there ut of the higbwas, it is difficult to it
the one is an action for the damages suffered joint right of recovery is asserted, the recovdeir liability. In passing over an nak by the child, and which passes to others by ery must be joint. It is not true as asserted le birbtume, the traveler migbt stri
right of inheritance, in case of the death of by some authorities, that the statute gives road to a great distance, at the risk of to
the child; and the other is an action for dam** they lenced in their whale bicon
the right of action to the personal representa2t, by mistake, enter a private
ages suffered by the parents on account of tive in all respects the same as if the party t'i xucbasis often let about a baba the loss of the child, or an action by the par- | injured himself had sued. Because the best public common, or an unfenced fena
ents for the loss of the child's services. There wwn responsible for any injury bear
considered authorities hold that where a sole p, because they had not fenced airco
is the child's right for damages suffered by beneficiary guilty of contributory negligence, or open space, or common O: RE
the child, and the parents' right for damages sues as administrator to the deceased minor, would be liable to bim for any OTTIE
suffered by the parent in the loss of the child that the contributory negligence of such an Ive from coming in collision with antre
or its services, and these two rights may preiture in the city by straying beyond
one is a defense on the nerits. All that can be met in the dark, unless they provide
sent themselves in the four different aspects said is, that the statute gives to the personal call their publie streets.". Considerazione
above mentioned. And there is still another representatives of the minor, the same right *** street, in its entire width of 1
point of view from which the case might be and in good condition; that plau
that the minor bad, but the enforcement of considered ; this is where a minor has neither ainted with the neighborhood: 113! ?
that right by the administrator may be atore purposely, or allowed him to
father nor mother, but is under the care, con** With the street, and had to page trol, maintenance and protection of its next
tended by circumstances different from those od sidewalk before reaching the epic
which would have existed, had the minor of kin, its near relatives, and one of these ill the other attending circumstica i
himself sued. Where a minor is so young protectors is guilty of contributory negligence pinion that the trial court was falls
that he cannot be held liable for contributory with respect to the child, that element of a sole beneficiary being guilty of contributory
negligence, the question arises whether he negligence, does not exist, but it is a case of tributory negligence of his parent or guard
can or should stand chargeable with the concontributory negligence on the part of one of several joint beneficiaries. Many of the de
ian-custodian. This is a question of no litcided cases and the view is endorsed by some
tle importance to the great railroad systems of the ablest and most recent text-writers
that belt this union with bands of iron. These hold that where a sole beneficiary sues as
corporations have become a public necessity administrator to the child, the contributory
to the commercial, business and governnegligence of such a one is a good defense
mental interests of the people, and whilst on the merits, as where a parent guilty of con
these organizations are formed by private intributory negligence, sues as administrator of quasi-public nature, and the public are con
dividuals for private gain, still they are of a the child, for an injury causing the death of the child. And some of the cases, hereto
cerned in their management and operation. fore cited, go further, and hold that the fact
Hot or cold, wet or dry, railroad trains must of the sole beneficiary, who is guilty of con
be run; they have come under an obligation
to the public, and this obligation lays on itself. First. Where the
stributory negligence, suing as administrator
them duties which do not belong to a mere
private enterprise. The running of railroad And that it matfers not who fills the office of administrator, danger, they are not easily controlled, not
trains is always attended with more or less flat if there be only one beneficiary, and such readily stopped when once started, but the gence, then that such negligence is a defense
necessities of rapid transportation demands for the benefit of the parent of the beneficiary be guilty of contributory negli. th. This is a statutory autori
that these corporations shall run their trains panty of reasoning, it one of several joint | danger to railroad employees and to passen
with speed. This rapid speed increases the gers; a railroad train and a railroad track is a place of danger-a red flag may be considered as always floating from a train or waiving from a track. Now, then, if a young child,
through the negligence of its parents or cusnd. 615; kay F. R. Co., 340. I izburg, 39 Am. St. Rep. the
todian, is suffered to wander on a railroad
2 Chitty on Pld., vol. 1, p. 79; Gould on Pld. p. 230.
8 Loague v. Railroad, 91 Tenn, 461; Grant v. City ity of Chicago v. Starr, de
Fitzburg, 160 Mass. 160; Wiswill v. Doyle, 160 Mass. · Doyle, 160 Vass. 42; Westerkets
107. 20. 64; Whirley r. Whitman, IR
mere form of procedure.
on the merits. If this be true, then by a
ne administrator of the mini n the administrator sues.
of the intestate, but also is to of kin, "and the damages ew of both aspects of the case alters v. R. Co., 11 lowa, 71;Hamid
beneficiaries he guilty of contributory negli-
v. R. Co. (Pa.), 24 Am.
Co., 78 Iowa, 396; Railwaria, 6.15 t. 611; City of Chicago F. Vat*
Law, $ 582.
track, in front of a rapidly moving train, and is chargeable either with his own negligence as The minor's title
, in the and justi.. is injured or killed, should the railroad be
or with the negligence of others. Butlet these
stiluded on the negligence doctrine ! dealt with as though the minor and its parents same gentlemen who are prone to use such
Se spot separate bis title may wel : were free from fault? Shall the parents, but strong language, when speaking of the doc- EN Negligence is a link who clasi. for whose negligence the child would not have trine to which they are opposed-I say, let
ades which will snap when his own been hurt, shall the very parties whose negli- these gentlemen remember, that the minor is
pozza al to the line." Es is the bei.e
a pau is a wholesome doc. when the gence was the direct and proximate cause of asserting a right founded on the negligence
13 sbout as near enforctor of the in the misfortune, be allowed to recover heavy of those who are responsible for his conduct, damages against the corporation for the results yes, the minor is asserting a right founded ped doing unto others as of their acknowledged negligence? If such is on the culpable negligence of those who are
en do to you as bumian protect the the law, then the law is in conflict with nat- his keepers and custodians by birth and by
iba conduct can come safely rely ural justice. Mr. Bishop in bis work on Non- blood. A low and depraved parent could
Ta sai wholesome application a minor fr.
in Then the parent is pro- danger in o. contract Law, takes strong position on this willfully expose his own offspring to danger subject against the railroad, and says that and death, and make profit from the transac
"treing either for damages of an in the negligence of the parent should not be tion, nay even, this doctrine allows the guilty
2 01, or for damages he question, w imputed to the minor, and says that the law
parent to go from the temple of justice with
sur death or injury of the dead, but never took away a child's property because the price of his iniquity in his bloody hands.
222 urent has been guilty of are not the its father was a scoundrel, poor or shiftless. The opposers of imputing to the minor the
9. In fact, we cannot todians of But this has nothing to do with the matter, negligence of the parent virtually abandon
*** kz, truly, may tbe minor kin might 1,
sted from a friend, wbo will covered for the two cases are not parallel; the question their position when they decide that the neg.
niz de binor to be exposed to custodiano here is shall an individual profit by an act of ligence of the parent is a bar in a suit by the which he was the proximate cause.
I have administrator of the minor, wben the parent never heard of anyone proposing to take a is the sole beneficiary. They say, to allow child's property because its father was the parent to recover in such case, despite scoundrel. Mr. Bishop may know of such
his negligence, would be to allow bim to take cases, but he does not cite any authorities to advantage of his own wrong directly. These that effect. And until he does I cannot give respectable authorities then hold, that conup my convictions, especially in the light of tributory negligence is a defense when to the arguments he makes.
deny or refuse the same would be to allow a Mr. Beach in his work on Contributory party to take advantage of his own wrong: Negligence says that the doctrine of the im
If a parent through bis negligence suffers his
in en te trek. I hope to live to which made putability of the parents' negligence to the
child to get injured by a railway train, and minor is an anomaly, and in striking contrast
then brings suit in his own name as parent
atas teresy will be banished passer and
and with the case of a donkey, exposed on the
for the loss of the child or his services, highway and negligently run down and in
recovers damages therefor, is he not taking
para braght against the doc. case, that is
z takiej tability of the negli- could not b. jured, or with oysters in the bed of a river,
advantage of his own wrong? And in all
cases where a parent sues for an injury, cuardian to the minor. act of the se injured by the negligent operation of the vessel, in both of which cases actions have been when his negligence was the proximate cause
mid doctrine, have driven authorize or sustained, and he adds that if the child were
of that injury and recovers damages of the an ass or an oyster, he would secure
fridge which will shatter common la a pro
defendant, is he not taking advantage of his tection, denied him as a human being. The
own wrong? The law will not allow that to learned author certainly will not contend,
be done indirectly, which it will not allow dope
in the role beneficiary, in a suit act, which t
har et entrator of the minor, ratify. Wh that the two cases are parallel. To make the
directly. And if the parent cannot directly parallel, there must be two persons, one take advantage of his own wrong, he will
agence of such parentemplary dar guilty of the negligence and the other suing,
not be allowed to indirectly do that which he to which last person, the plaintiff, the negli
4 Nisbet v. Town of Garner, 1 L. R. A. 163; gence of the first is proposed to be imputed.
case of Wi Whirley v. Wbituan, 1 Head, 610; Railroad Co. . In Mr. Beach's case, we have the master at Wilcox, 8 L. R. A. 494; Kay v. Railroad Co., 3 Am.
P one end of the line and an ass at the other
Rep. 629; Railway Co. v. Crawford, 24 Obio st. 611.
5 Grant v. City of Fitzburg, 160 Mass. 160; Glassey end, this is the parallel he makes. We are v. Railway Co., 57 Pa. St. 172, Wiswill v. Doyle, 39
a pergence, that such per- damages is told by the advocates of the doctrine of the Am. St. Rep. 451; Bottoms v. R. Co. (N. C.), 23, 41
a negligente, reason the doctrin non-imputability of negligence to minors,
Am. St. Rep. 799; Burger v. R. Co., 112 Mo. 249; Rid
wow2, 3; Westerberg v. that the minor has done no wrong, that his
enbrur v. R. Co., 102 Mo. 286; Bluedorn v. Railway
Co., 121 Mo. 268; Pat. Ry. Acc. Law, $ 72; Pol. Torts, tender years forbids the supposition that he § 299; Cooley, Torts, $ 681;
hal. Enc. Law, $; Tiffany, l ters v. R. CO., 6 Blackstone's Comm. vol. 2, p. 154.
chat, sad then come demand. | life.” of a negligence. Most of the We come suas inicting severe penal. willful, ma
to carelessly or negligently imputer to est raber, yet, these courts master lia!, 23 in their codes, will reward the common se sabor, whose negligence to the same
' isi, by suffering him to servant, eve 4 luns against the railroad employment ** bus ita mer a child who besonal act.
tertentie, and the trend of the the master (
svet ndich have been firm of his emplo
art by holding that where ble to make
a var, or in evidence on and Lord C
waris will be compelled serede iary, or the plaintiff contained na potrbutory negligence,
ses through others who ment, yet
or of the right
her #; Hartfeld v. Roper, 21
Thompson Veg. $ 1184.
laid down. 8 City of 1
Day even, this doctrine allow
opposers of imputing to the gence of the parent virtually su position wben they decide the 2 ce of the parent is a bar in a con nistrator of the minor, when e sole beneficiary. There arent to recover in such as egligence, would be to allow to itage of his own wrong diren ctable authorities then bo. 3. tory negligence is a defense or refuse the same would be
to take advantage of his or arent through his negligent to get injured by a railway tri brings suit in his own dalk :: je loss of the child or his sermos ers damages therefor, is de 3 atage of his own wrong:
where a parent sues for di his negligence was the provisi at injury and recorers damage Jant, is he not taking adrezte
argeable either with his
in the and justice alike point to this result. As the
Esgentlemen remember, that becam ever the "plummet is laid to the line." is the beneficiary either in his own right, or ‘ing a right founded on the ter toppel by matter in pais is a wholesoine doc. when the suit is brought by the administraose who are responsible for his ..
trine. In fact it comes about as near enforc- tor of the minor. A great deal is said about the minor is asserting a right be
ing the golden rule of doing unto others as the protection of minors. Does this doctrine le culpable negligence of those i
you would have others do to you as human protect them? But it is said the law can
rules applied to human conduct can come. safely rely on the parental affection to shield eepers and custodians by birth is
And it is a wise and wholesome application
a minor from the danger of being exposed to
suffered by the minor, or for damages he question, we say, that both parents may be
has suffered by the death or injury of the dead, but still the law; applies for parents it to go from the temple of je
minor, when he the parent has been guilty of are not the only persons that can act as cusrice of his iniquity in his bilmir
contributory negligence. In fact, we cannot todians of minors, for some of the next of see how it can be; for, truly, may the minor kin might be sole beneficiary of damages repray to be delivered from a friend, who will covered for the minor's death, as well as negligently suffer the minor to be exposed to custodian of the minor's person during his almost certain death, and then come demand
life. 8 ing the price of his negligence. Most of the We come, now, to consider the case of the States have statutes inflicting severe penal- willful, malicious wrong of the employees ties on persons who carelessly or negligently imputed to the master, so as to make the cause the death of another, yet, these courts master liable for exemplary damages. By with this statute in their codes, will reward the common law the master was not liable, the custodian of a minor, whose negligence
to the same extent, for the trespass of the Causes the minor's death, by suffering him to
servant, even when done in the line of his recover beavy damages against the railroad employment, as for the master's own perwhose train has run over a child who he sonal act. When the servant did an act Caused to be on the track.? I hope to live to
which made the perpetrator thereof a tres. see the day when this heresy will be banished
passer and suable in an action of trespass, from our jurisprudence, and the trend of the
the master could only he sued in an action of current of judicial thought against the doc.
case, that is, by the common law, the master trine of the non-imputability of the negli
could not be treated as a trespasser for the gence of the parent or guardian to the minor.
act of the servant even when done in the line Some of the courts which have been firm supporters of the old doctrine, have driven of his employment, where the master did not
The authorize or ratify the servant's act. bome the entering wedge which will shatter
common this judicial heresy, by holding that where
law only held the master liathe parent is the sole beneficiary, in a suit
ble to make compensation for the servant's
act, which the master did not authorize or brought by the administrator of the minor, | ratify. Whilst we find no instance of exthe contributory negligence of such parent | emplary damages in the early common law, is, as a special plea, a bar, or in evidence on
and Lord Camden's charge to the jury in the
case of Wilkes v. Wood, Lofft. 1, 18, 19, to bold, that the beneficiary, or the plaintiff contained perhaps the first clear enunciation
of the right of the jury to inflict this punishment, yet the principle on which punitive damages is at this day allowed, is found in the doctrines of the common law above laid down.' But some modern author
8 City of Chicago v. Hesing, 25 Am. Rep. 378; Wal
ters v. R. Co., 41 Iowa, 71. 0.263; Pat. Rr. Acc. Lu
9 McManus v. Cricket, 1 East. 108. Bourcher y.
wrong? The law will not in ne indirectly
, which it will not in 1.6 And if the parent canta". advantage of his own e allowed to indirectly do nas
ab estoppel. Such courts will be compelled
bet v. Town of Garner, 14
". Ibitman, 1 Head. 610; RIM K, s L. R. A. 194; karr. Bailma!! P9; Railway Co. v. Crawford, :! It Y. pantv. Cits of Fitzbury, 160 MA war Co., 57 P3. St. 179; W. t. Rep. 451; Bottoms v. R. OK!
Rep. 799; Burger F. R. Co, li: 1. R. Co., 102 Mo. 286); Blueber
who is guilty of contributory negligence, or
Wymore v. Mahaska, 78 Iowa, 396; Westerberg v.
Pooley, Torts, $ 6$i; 2 Thompras. *2 stone's Comm. vol. 2, p. 164