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a smart boy of nine and an infant of two? | Smith,38 the latest case in that State, the docThe former is holden only to a degree of care trine is shuffled off, as in the New York cases suited to his capacity. And if his parent's cited; the court holding that, even if the parnegligence is not fairly imputable to him, it ents were negligent in permitting a child four seems difficult to perceive why it should be in and one-half years old run over by hack, any case. Observe, the ground taken by the

to go upon the street, yet, if he neither did court is not that the capacity of the plaintiff what was imprudent, nor omitted what was is such that the parents are free from negli- prudent, the negligence of the parents was gence. If they had not been negligent that too remote. But when could a child of that would have been the end of the question. age be considered imprudent? And why imTheir negligence, on the contrary, is virtually pute negligence in any case of parent aud conceded. We maintain that no good reason child if not in that? can be shown why a youth, or indeed an Illinois.-In a number of cases, the Suadult, should not be held responsible for a preme Court of that State has followed or reparent's negligence that would not logically cognized the doctrine, in association with apply to a very young child. In the case of the rule of comparative negligence, peculiar the adult, no one pretends to assert such a to that State. 'In Chicago v. Starr, 40 where a doctrine. To yield it as to a capable boy of child of six was killed in the street, it was nine is, we submit, to abandon the principle. held : "That it was carelegsness of no slight It inverts the natural order to treat increased degree to permit this child of six years thus capacity as involving diminished responsibil- to wander over the streets of a crowded city ity for one's own, or another's actions. is a proposition that admits neither of debate

In McGarry v. Loomis, 85 decided in 1875, nor doubt. We are of opinion that the negand the last case in which the question has ligence on the part of the city was not only come before the Court of Appeals, where the not more, but was even less than that fairly plaintiff, a child of four, was injured while

attributed to the parents of the child.” The on the sidewalk by a pool of hot water exud

latest case is Toledo, etc. Co. v. Grable.“ ing from defendant's steam pipe, a recovery There a child 28 months old wandered on the was sustained. The court, through Church, track and was run over; and the mother was C. J., taking the position that, as the child

killed in trying to save the child. Say the had done nothing that would have been neg

court, by Scott, J.: "Where there is negliligent in an adult, and was not a trespasser, gence on the part of the injured party, or, as but was in a lawful place, the alleged negli

in this case, on the part of those charged gence of the parents in allowing it to be there

with the care of the injured party contribucould not defeat a verdict. This, we think,

ting directly to produce the result, there can for reasons stated, a practical abandonment

be no recovery unless such negligence is of the rule of imputability. For such a child

slight and that of the defendant gross in the must necessarily bc legally faultless, and the

comparison.” We do not find the underlyparents were clearly negligent in suffering

ing reason of the rule anywhere discussed in their child to be in so dangerous a situation

these cases. as that was, although it was where it had a le

Missouri,—That State has followed Hartgal right to be. Church and Rapello and the

field v. Roper.42 Yet the Supreme Court in court in both cases, unconsciously perhaps,

Boland v. Mo. Pac. R. Co., 43 dissent from thus attest their dissatisfaction with the doctrine.

38 104 Mass., 56. Massachusetts.-In Holly v. Boston, etc.

39 Chicago v. Major, 18 Ill. 356; Chicago v. Starr, 42

Ill. 174; Chicago & Alton R. Co. v. McLaughlin, 47 Gas Cor, 36 the leading case in that State, the III. 265; Chicago & Alton R. Co. v. Gregory, 58 III. 226; doctrine is recognized without discussion. It Obio & Mississippi R. Co. v. Stratton, 78 III. 88; Chi. is applied in other cases.87 In Lynch v.

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cago v. Hessing, 83 II). 205; Chicago & Alton R. Co. v. Becker, 84 Ill. 483; Toledo, etc. R. Co. v. Grable. 88

Ill. 442. 35 63 N. Y., 104.

40 42 Ill., 174. 36 8 Gray, 128.

41 88 Ill., 442. 37 Wright v. Malden, 4 Allen, 283; Munn v. Reed, 4 42 Isabel v. Hannibal & St. Jo R. Co., 60 Mo. 475; Allen, 431; Callehan v. Bean, 9 Allen, 401; Mulligan v. Stillson v. Hannibal & St. Jo R. Co., 67 Mo. 671. Curtis, 100 Mass. 513.


43 36 Mo.,


the views of Cowan, J., in Hartfield v. Ro- the latter case. Says Redfield J. for the per, in confounding all distinctions between court: “We are satisfied that, although a child the responsibility for negligence of children or idiot or lunatic may to some extent have and adults. In Isabel v. Han. & St. Joe R. creeped into the highway through the fault or Co., # the doctrine is indistinctly recognized. negligence of his keeper, and so be impropIt is only in Stillson v. Han. & St. Joe R. erly there, yet, if he is hurt by the negliCo., 4. decided in 1877, that the rule, though gence of the defendant he is not precluded without reasoning, is applied.

from his redress. If one knows that such a Indiana.—The rule is obediently followed person is in the highway he is bound to a in that State. 46 The court in Pitts., Ft. W. proportionate degree of watchfulness. And etc. R. Co. v. Vining, 47 where the child was what would be but ordinary neglect in regard seven, saying: “It seems to us that the un- to one, whom the defendant supposed a pernecessary exposure to known danger of a son of full age and capacity would be gross child incapable of exercising the care and neglect as to a child, or one known to be injudgment of mature years is in itself an act capable of escaping danger. of negligence on the part of the parents suf- The case of Hartfield v. Roper, is, so far as ficient to defeat a recovery, unless the injury it has any application to the present case, alis wilful”

together at variance with that of Lynch v. Maine, completes the list of affirmatives.48 Nurdin, and far less sound in its principles, The court in Brown v. E. & N. A. R. Co.,4 and infinitely less satisfactory to the instinctwhere a child of nine was injured by a draw, ive sense of reason and justice.” holding that the child was careless, if negli- Pennsylvania.—The cases in that state gence could be imputed to one so young; speak no uncertain sound. In Pennsylvania and, if not, the parents were careless in al- R. Co. v. Kelly Woodward J. delivering the lowing it to run at large, that the plaintiff, opinion, quotes the language given above of the child, in either case was responsible. Redfield J. in Robinson v. Cone, “dismisses”

Kentuckyho and Marylandól also acquiesce Hartfield v. Roper, adding that “Lord Denin this rule.

man's opinion in Lynch v. Nurdin was subA careful examination of all these

sequent to that of Mr. Justice Cowen and will not disclose, that, aside from the bare much worthier it seems to be followed." In authority of the courts deciding them, they Smith v. O'Conner56 a girl of seven was run add any strength to the foundations of this

over by a wagon on the street. The court doctrine, beyond what has been already here again rejects the principle of Hartfleld v. in considered. Indeed, but a very few of Roper. Says Strong J.: "This is compelling them are reasoned at all.

the child to the exercise not of its own, but of Cases Repudiating this Doctrine of Imputed its parents' discretion. It is holding it resNegligence. Vermont, seems entitled to first

ponsible for the ordinary care of adults. In consideration, as this court supplies the lead- maintaining it, the New York courts stand ing case52. In Robinson v. Cone, decided in

supported only by the supreme court of 1850, 11 years after Hartfield v. Roper, a boy Massachusetts in Holly v. the Boston Gas three

years nine months of age was run over C057.In North Pennsylvania R. Co. v. on the highway by a sleigh. The facts, it Mahony 55, a child of 4, while in the arms of will be seen, being very much like those in

her aunt, not placed in charge of her, was

It was held that the child was not

liable for the aunt's negligence. 4460 Mo., 475. 45 67 Mo., 671.

Ohio.-In Bellefontaine & I. R. Co. v. 46 Pittsburg, etc. R. Co. v. Vining, 27 Ind. 513; Lafayette & Ind. R. Co. v. Huffman, 28 Ind. 287; Hathaway v. Toledo, etc. R. Co., 46 Ind. 25.

53 1 Ad. & El., N. S., 29. 47 27 Ind., 513.

54 Penn. R. Co., v. Kelly 31 Pa., St. 377; Smith v. 48 58 Me. 384; 62 Me. 468.

O'Conner 48; Pa., 220; Nor. Pa., R. Co. v. Mahony 57 49 58 Me. 384.

Pa. 187. 60 Louisville &c Canal Co. v. Murphy 9 Bush 522.

55 31 Pa. St. 377. 51 McMahon v. North, &c. R. Co. 39 Md. 438 Balt. 68 48 Pa. St. 220. &c. R. Co. v. McDonald 43; Md., 534.

67 8 Gray 123. 52 Robinson v. Cone 22 Vt. 213.

58 57 Pa. St. 187.


run over.

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Snyder, a leading case, a girl of six was run upon which this rule is founded, leads ineviover by a gravel train. The Supreme Court,

The Supreme Court, evitably to the overthrow of the whole Welch J. delivering the opinion, made a doctrine, and doubless that court, will, in a thorough examination of this question, which case where the question squarely arises, so was the sole question in the case, carefully hold. It logically results that if the negliclassifying and discussing the authorities. gence of the person placed in charge by the Say the court, "the weight of authority in parent, and who, for that purpose, is the paour judgment, as well as the reasoning, is rent's agent, is immaterial to the case, that against the adoption of the doctrine in any of the principal, the parent, is equally immaform, or under any circumstances.” The terial. court adds, “we have examined most of the Connecticut.-Daley v. Norwich & C. R. authorities on which the doctrine rests, with Co.63 declares the law for that State. A child some care, and the result is a conviction that

three years old, was run over in the city of in most of the cases the assertion of the doc- Norwich by a freight train drawn by powerful trine amounts to little more than mere dicta. engines, and making from five to fifteen miles

The cases warrant the declara- per hour, around a curve, where the engineer ration of no such general rule.

could not see forty paces ahead. Says the The utmost that can fairly be claimed in these court below: “In an action brought by the cases is that the rule is applicable to some father his negligence might be a defence, but cases, depending on the nature of the defen- in an action by a child for an injury inflicted dant's negligence.

In Hartfield on her through the defendant's negligence, Roper the doctrine is a mere dictum.” In they are not relieved from the consequences C. C. C. & I. R. Co. v. Mansongo, where of their own fault because the natural protecthe plaintiff was a girl of nine, that court tors of the plaintiff, may also have been wantfollows Snyder's case, and declares that the ing in their duty towards her. Says the doctrine of imputed negligence does not pre- Supreme Court, on Appeal, W. W. Ellsworth vail in Ohio. In St. Clair R. Co. y. Eadiel. J. “We entertain no doubt that the view exA female of sixteen, held sui juris, was in- pressed by the judge is entirely correct jured by the collision with a street car of a

It is obvious that the negligence of wagon in which she was riding with her fath- the parents, if there was any, is not the want er, he driving, through the mutual and con- of ordinary care in a child less than three curring negligence of the father and the dri-. years of age, however, much such negligence ver of the street car. The same court holds might be a defence to an action by the faththe plaintiff not responsible for her father's er, had he sued the company for expenses negligence.

incurred, or for loss of service.” That Court Iowa.-In Wallers v. C. R. I. & P. R. Co.,62 has thus touched the quick of the underlying a child two years old run over in principle involved, viz. the entire irresponsiDavenport by a freight train. The person bility of the child for its father's misconduct. in charge of the child was claimed to have

Virginia.The court of that State has asbeen negligent in permitting the child to get

sumed no equivocal position on this subject. upon the track. Day, J. speaking for the

N. & P. R. Co. v. Ormsby, 64 was a case where Supreme Court, and holding that a child of

a child of two years and ten months was run two cannot be deemed guilty of negligence,

over on a railroad track. The court 'concurs says,“when therefore the parents, who are pri

in Lynch v. Nurdin and others of that class marily entrusted with the protection and care of

which decide that the neglect of parents and their infant children, exercise reasonable and

guardians is not imputable to infants in such ordinary care, there is no good reason why the

cases; and does not concur in the principle of negligence of the person in charge of the child

the case of Hartfield v. Roper and others of should be imputed' to the parent, or through

that class which decide the contrary.” the parent to the child itself.” The reason

Tennessee.—In Whirley v. Whitmans the 59 18 Ohio St. 399. 60 30 Ohio St. 472.

63 26 Conn. 591. 61 24 Am. L. Reg. 706.

64 27 Gratt 455. 62 41 Iowa 71.

65 1 Head 610.





case of a child of three, injured while playing obtained an extensive sway over too many around machinery, that court expressly re- States. Latterly the New York courts have fuses to follow Hartfield v. Roper, and cites wavered, and against this offspring of dictum, approvingly Lynch v. Nurdin.

we marshall the emphatic expressions of RedMinnesota.-In Fitzgerald v. St. P. R. field, Strong, Woodward, Ellsworth, Welch, Co.,66 the court below held the weight of au- and Dundy; and are content to leave the disthority and reason to be against the doctrine, cussion, with the hope that this New York but applied the doctrine to that case, because rule will go no further. WM. G. WHIPPLE. opposing counsel agreed to it, and the Su- Little Rock, Ark. preme Court affirmed.

Nebraska.—Huff v. Ames67 arrays this young and vigorous state in the line of the sound states as to this doctrine. A boy of BILL IN EQUITY FOR PERPETUAL INeleven was hurt in defendant's cane mill. JUNCTION TO PRESENT INTERFERENCE That court thinks the weight of authority and WITH EXCLUSIVE RIGHT OF OPERATING better rule to be, that in an action by the STREET RAILWAY. infant for damages resulting from an injury

to himself, by the negligence or want of care • of a third party, the negligence of the parent


RAILWAY CO. V. THE BIRMINGHAM or guardian is not to be considered, or im

STREET RAILWAY CO. puted to the infant.

We supplement these holdings by State Courts of last resort, with the only case, it is

Supreme Court of Alabama. believed, in which the question has come before a court of the United States.

1 Corporations, Constitutional Law-Grant of

Exclusive Privilege by Municipal Corporation Void.In Stout v. R. Co.68, tried in the U. S. C.

There is no clause in the charter of the City of BirmC, for the district of Nebraska, a boy of six ingham, nor any public statute, which authorizes the was injured on defendant's turn table.

municipal authorities of said city to grant to any per

son or private corporation the exclusive privilege of Dundy J. charged the jury against the doc

running street cars through certain designated streets trine of imputed negligence of father to and avenues of said city in perpetuity; and such grant, child. The jury failing to agree, on a second

if authorized by any statute or charter, would be in

violation of the constitutional inhibition of laws trial,69 Dillon, J., charged the jury, stating to “making any irrevocalbe grant of special privileges or them that the counsel for the defendant immunities."disclaim resting their defence on the ground that the plaintiff's parents were negligent, or

Appeal from the Chancery Court of Jefferson. that the plaintiff, considering his tender age,

Heard before Hon. Thomas Cobbs, Chancellor.

Messrs. James M. Van Hoose, and Hewitt, Walkwas negligent." So the question went no

er & Porter, counsel for appellant. Messrs. R. H. further; though the jury found a verdict for

Pearson, and Webb & Tillman, contra. the plaintiff, and the case was appealed to the SOMERVILLE, J., delivered the opinion of the Supreme Court of the United States70.

court: Conclusion.—Having filled so much more

The equity of the complainant's bill in this case

depends in our judgment, upon a single inquiry, space than was intended, we claim finally that

and that is, whether the municipal authorities of those courts are sound which conclude that

the city of Birmingham were invested by law with this doctrine is against reason and authority. the power to make to the appellee-the BirmingOriginating chiefly in dicta, it has had for the ham Street Railway Company-an irrevocable most part, it is presumed, but a reluctant

grant of the exclusive privilege to construct and following. Judge Cowen lays down a dictum.

operate a street railway over and through certain

streets and avenues of that city. If the power to Massachusetts compliantly endorses it, other

grant such a franchise resided in this municipality States yield their assent, and so the rule has and if the franchise has been lawfully granted

upon a valuable consideration by an ordinance in 66 29 Minn. 336.

the nature of a contract, there can be no doubt 87 19 N. W. Rep. 623. 68 11 Am. L. Reg. 226.

either of the jurisdiction, or of the duty of a court * 2 Dillon 298.

of equity to protect the invasion of the right by 17 Wall. 657.

issuing the injunction to prevent contiguous com


petition on the part of the appellants, in their ef that the contract in question, so far as it purports forts to establish an opposition railway company to grant to the appellee the exclusive right to railover any of the same streets or avenues previously way privileges over the streets designated, is void included in the grant to the appellee. I High on for two reasons. First: on the ground that there Inj. (2nd Ed.) $ 902. If, however, the power in is no clause either in the charter of the city, nor question did not exist, then the grant would be void any other law of the General Assembly, which so far as it purports to be exclusive in its nature, authorizes the making of such a contract; and the bill in such contingency, is withont equity, Secondly, because the contract itself is in violation and the court must be pronounced to have erred of section twenty-three of Article 1 of the Conin refusing to dismiss the bill for want of equity, stitution of Alabama, which provides that no law and in refusing to dissolve the injunction granted shall be passed by the general assembly “making at the instance of the complainant.

any irrevocable grants of special privileges or imBefore wo proceed to discuss the power of the munities.” If either of these positions can be Mayor and Aldermen of the City of Birmingham to successfully maintained, the exclusive feature of grant such a franchise, we propose to first consider the franchise is without warrant of law, and must the nature of the thing granted, or the character of its own weight fall to the ground. and terms of the franchise itself.

The power to make this exclusive grant, which, It bears date on the nineteenth day of May, 1882, though not strictly a monopoly, is certainly in the was duly enacted by ordinance, and purports to

nature of one, must be derived either from some be in the form of a regular contract between the

clause in the charter of the city, from the laws of subscribing parties. The privilege gran ed was

the State, under which the appellee railway comthe exclusive right to construct and operate a

pany was organized, of from the constitution of street railway, with the necessary side tracks and

Alabama, which is the organic law of the Sta'e. turn-outs, over and upon fifteen designated streets

The only section of the vresent constitution, of and avenues of the city. The only limitation of

1875, bearing on the ject of street railways, is this grant, in point of time, is the proviso that it

in section 34 article 14, which provides that "no shall not apply to such of said streets and avenues

street passenger railway shall be constructed with. as shall not have been occupied by the grantee

in the limits of any city or town, without the conwithin ten years from the date of the contract. The

sent of its local authorities.” This is prohibitory franchise, it will thus be seen, is one not only ex

and not permissive in its nature, and confers no clusive in its nature, but in perpetuity, being

franchise or right of any kind on any person or without limit of duration, except as to an option

corporation, much less one of an exclusive characto exercise it, which was to continue for ten years.

ter. This is not denied and is too obvious for When once put in exercise it purports to last for argument. ever. The main consideration on the part of the

The present charter of the city, enacted March grantee was the agreement to construct at least

1, 1881, and the one in force at the time of the alone mile of such railway, and to transport passen

leged grant, is silent on the subject of street railgers at a fare not exceeding five cents from one

ways. There is a power conferred in sub-divisend of the line to the other. Certain powers of

ion 18, of $ 30, authorizing the city authorities police and regulation are retained to be exercised

"to regulate and control the running of cars or

locomotives upon or across the streets, avenues or by the city, not necessary to be mentioned. For all the purposes of this discussion we shall consid

alleys of said city, and to regulate and control

the speed of such cars, engines, or trains, within er this franchise as a contract between the Mayor

the corporate limits of the city.” Acts, 1880–81, and Aldermen of Birmingham, and the appellee,

p. 481. The better opinion would seem to be that such as, if valid and binding, would be fully pro

this clause has reference only to cars propelled tected from violation by both the constitution of

by steam, and not to ordinary passenger street the United States and of this State, each of which

railways unless drawn by locomotives. Peoples' instruments prohibits the passage of any laws by

Railroad v. Memphis Railroad, 10 Wall. 38, 51. State or municipality impairing the obligations of

But assuming the opposite to be the correct view, contracts. So we shall consider the contention of

or assuming that the power to regulate and conthe appellee as well taken, that if the grant of this

trol the running of such cars exists as an incidenexclusive right be obnoxious to no objection, eith

tal police power under other clauses of the city er on constitutional grounds or for want of the charter, which is probable, it is unquestionably charter power to make it, the obligation of the true that such a power confers no right on the contract would be impaired by the subsequent city authorities to grant to any person or corpore grant of a similar franchise to the appellant com ation a privilege exclusive in its character and pany to build their competing road over and along without limit as to duration. The authorities in the streets and avenues included in the appellees support of this proposition are so numerous and franchise, and embraced in this controversy. uniform that we will not stop to argue it at any New Orleans Gas Co. v. Louisiana Light Co. 115 length. Cooley's Const. Lim. (5th ed.) 252 (*207); U. S. 650. The Birmingham Bridge 3 Wall. 31. 1 Dillon on Mun. Corp. (3d ed.) $ 114, § 362; L0

The contention of the appellants in this case is gan v. Pyne, 45 Iowa, 524; 8. C. 22 Amer. Rep.

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