54 mnmur. nsronrma.-
‘ Q ~McGomm v. Cmcseog M. & Sr. P.· RY. Co. t
1 . (Girard: (lourt, D. Minnesota. January 2, 1889.)
R.m.ao.u> Gom·nuas——In.1unr ro Pmnsons on Tm.cx—Conrnmoronr Nmom·
e11:Nca—Cmr.1>nnn.
Plaintiff, a boy 10 years old, bright and intelligent for his age, c_rossed a
railroad track as soon as a train had passed, and stepped onto another track,
_ where he was struck by a train coming from an opposite direction, at an un-
lawful rate of s eed, and without giving any warning. Held, that the court
would not rule trhat plaintiff was negligent as a matter of law, and that the
question was properly  ubmitted to the jury under instructions that only such
vigilance was required of plaintiff as could reasonably be expected of a child
‘ oi his age and capacity}
At Law. On deiendant’s motion for new trial. .
This suit was brought to recover damages for a personal injury to
plaintiff, John McGuire, a boy nearly 10 years old, resulting from the
negligence `of the defendant; and the jury rendered a verdict for the
plaintiii`. Plaintiff was about to cross the defenclaut’s railway tracks
, near the corner of Eleventh avenue and Fourth street in the city of Min-
neapolis, inthis district, and on reaching the tracks on Eleventh avenue
he stopped for a passenger train to go by, and as the train passed he
stepped before the last car on and over that track onto another, upon
which a freight train was coming in an opposite direction, and was im-
mediately confronted and struck by the engine. Subsequently, in his
endeavors to escape, he was_ thrown from a pile of boards under the wheels
of the passenger train. The evidence tended to- show that the freight
train was moving at a rate of speed prohibited by law, and that no warn-
ing by ringing a .bell or otherwise was given. The defense of contribu-
tory negligence was interposed by defendant. The court decided that
the plaintiff, as the evidence showed, was active, bright, and intelligent, ‘
and had the faculties requisite for the perception of danger. , -
Flandrau, Squires &· Outcheon, for the motion.
. Forrest &: Van Cleve, contra.
NELSON, J., (after stating the facts suostarwtauy as above.) A correct de-
cision of this motion depends upon whether or not the boy was negligent
as a matter of law in going upon the tracks and attempting to crossas
he did. If anadult had been injured under the same circumstances,
instead ofa child about 10 years of age, I should have little hesitation
in granting tliernotion. I feel satislied, however, that this case was a.
proper one for the jury upon the question of contributory negligence,
and I do not think that the court erred in refusing to instruct them that
the act of the boy in attempting to cross the tracks was negligence as a
matter of law. The caution required of the boy was according to his
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upaxgoifeoung, (Ga.) 7 S. E. Rep. 912; Rai way 0. v. Whipple, (Kan.) 18 Pac. Rep. 730,