Indianapolis, Peru and Chicago Railway Company v. Pitzer. The cases last cited all recognize the rule that children of tender years are not to be treated as persons of mature years. This is a reasonable and humane rule, and any other would be a cruel reproach to the law; but the law merits no such reproach, for throughout all its branches, whether of tort or contract, there runs, like the marking red cord of the British navy, a line distinguishing children of years too few to have judgment or discretion, from those old enough to possess and exercise those faculties. This is a doctrine taught by every man's experience, and sanctioned by our law. A departure from it would shock every one's sense of justice and humanity. Cases very closely resembling the present recognize and enforce this distinctiction, and without substantial diversity of opinion the general principle is recognized, although there is not entire uniformity in its application. Dr. Wharton, in discussing the general subject, says: "The protection of the helpless from spoliation is one of the cardinal duties of Christian civilization; and when those so helpless are young children, this duty is aided both by the instincts of nature and the true policy of the State." Whart. Neg., § 313. Mr. Thompson says: "The general rule is, that where the injury is caused by the actual negligence of the company, the child can be expected to use discretion only in respect of its years; and the total incapacity of a child to know the danger, and avoid it, shields it from responsibility for its acts. Greater care, therefore, must be exercised in reference to children than to adults." 1 Thomp. Neg. 452. Another author says: "When the trespasser is an infant, the railway company, on the one hand is held bound to exercise a higher degree of care and caution than is required as to adults, and the infant, on the other hand, is not required to exercise a discretion and prudence beyond its years, but only that measure of sense and judgment which it may reasonably be expected to possess in view of its age." Beach Cont. Neg., 211. Cases in great numbers might be collected supporting the general doctrine declared by these authors, and applying it to almost every conceivable phase of the question, but we deem it unnecessary to cite these cases, as there is little, if any, diversity of opinion. The principle of which we are speaking supplies the initial proposition for this discussion, since it enables us to declare that the conductor was bound to use much greater care in dealing with a child of seven years than he would have been required to exercise respecting an older person. The care exercised by him was not such as under the Indianapolis, Peru and Chicago Railway Company v. Pitzer. circumstances it was his duty to exercise. Expelling from the train, miles from its home, a child so young as to be incapable of taking care of itself, or of comprehending the danger of its situation, without asking any one to give it attention or look after its safety, was not such care as humanity and justice require; but we do not place our decision upon this point alone, for we think that the conductor's want of care must be taken in conjunction with the wrong of the engineer and those in charge of the freight train in negligently failing to stop the train when it was within their power to do so before it ran upon the child. These two leading facts, when combined, make a case establishing negligence on the part of the appellant, and excluding contributory negligence on the part of the child. We cannot undertake to comment upon all of the many cases which declare principles that rule such cases as this, but we deem it not unprofitable to refer to some of the decisions which light our way to a just conclusion. In Louisville, etc., R. Co. v. Sullivan, 81 Ky. 624; s. c., 50 Am. Rep. 186, a man, so drunk as to be helpless mentally and physically, was put off a railroad train, on a cold winter night, by a conductor who knew his condition. The passenger so ejected from the train was severely frozen, and in a very strongly-reasoned opinion the company was held liable. The doctrine of this case is perhaps an extreme one, and to be carefully limited, yet it is not easy to answer the reasoning of the court or meet the force of the authorities cited. In our own case of McClelland v. Louisville, etc., Ry. Co., 94 Ind. 276, the company was held to be not responsible for the killing of a drunken man who was put off the train and wandered back upon the track and was killed; but the theory upon which that case was decided hardly meets the question as presented in this case, or in Louisville, etc., R. Co. v. Sullivan, supra. for the facts are not the same in the two cases. The court in the case of Atchison, etc., R. Co. v. Weber, 33 Kans. 543; s. c., 52 Am. Rep. 543, approved this instruction: "Of course the carrier is not required to keep hospitals or nurses for sick or insane passengers, but when a passenger is found by the carrier to be in such a helpless condition, it is the duty of the carrier to exercise the reasonable and necessary offices of humanity toward him until some suitable provision may be made." And it was held that it was proper for the carrier to transport a passenger suffering from Indianapolis, Peru and Chicago Railway Company v. Pitzer. delirium tremens to one of its stations, and there place him in charge of the overseer of the poor. Discussing a question somewhat similar to that involved in the cases cited, the Supreme Court of Ohio said: "It might perhaps as far as this case is conceded that if a man were so intoxicated as to be without reason, sense, or intelligence, it would be unlawful, as it would be inhuman, to expel him from cars at night, where he would be just as likely as not to lie down upon the rails and go to sleep. We may concede further, that to put off a drunken man, during a bitterly cold night, in the woods, far from any house, when the probabilities were that he would freeze to death before help could reach him, would be as indefensible in law as it would be wicked and cruel in fact." Railway Co. v. Valleley, 32 Ohio St. 345; 30 Am. Rep. 601. These are cases, extreme ones it may be, illustrating the doctrine that regard must be had to the helpless condition of one who enters a railroad train, and that those in charge of the train must do no act which is cruel or inhuman. Granting that these cases are extreme ones, still the general doctrine which they assert is undeniably a sound one, for through all the cases runs the principle that what humanity requires must be done by those who act with knowledge of another's helplessness. Weymire v. Wolfe, 52 Iowa, 533; Northern Central Ry. Co. v. State, 29 Md. 420; Walker v. Great Western Ry. Co., L. R., 2 Exch. 228; Swazey v. Union Manfg. Co., 42 Conn. 556; Atlantic, etc., R. Co. v. Reisner, 18 Kans. 458; Marquette, etc., R. Co. v. Taft, 28 Mich. 289 (Opinion of COOLEY, J.); Terre Haute, etc., R. Co. v. McMurray, 98 Ind. 358; s. c., 49 Am. Rep. 752. This principle supplies a solid foundation for the rule that the age of a child is an important element to be considered in determining whether the person who injured him was negligent, as well as in determining whether the child himself was guilty of contributory negligence. We know that there are many cases which hold, and right y hold, that children may be guilty of negligence. Hathaway v. Toledo, etc., Ry. Co., 46 Ind. 25; Higgins v. Jeffersonville, etc., R. Co., 52 Ind. 110; 2 Wood Ry. Law, 1272, 1273. A child's age and helplessness may however often excuse where one of mature age would be adjudged in fault, and may also often make an act negligent as to him that would not be so as to one of riper years. It is upon this principle that a recent writer who Indianapolis, Peru and Chicago Railway Company v. Pitzer. fortifies his assertion by many cases-is sustained in saying: "But there is no presumption that a young child or a drunken person will heed the signals of danger, and the engineer is bound to stop the train if he sees that they make no attempt to leave the track." 2 Wood Ry. Law, 1268n. Doubtless the rule is to be very guardedly applied to one who voluntarily incapacitates himself, since he himself is guilty of a wrong not easily palliated, and it is not easy for an engineer to distinguish a drunken man from a sober one; but with respect to a child of seven years of age it is far otherwise, for nature has incapacitated it, and the engineer can readily distinguish from his stature and appearance the difference between it and a person who has attained years of discretion. Illustrating the subject we are discussing, is a decision by a court which has applied with as much strictness as any in the land the law against children, wherein it was held that negligence could not be imputed to a boy nine years of age who had climbed through a train of freight cars and was injured. Pennsylvania Co. v. Kelly, 31 Penn. St. 372. In another case in that court it was said: "He acted like a child and like a child he must be judged." Rauch v. Lloyd, 31 Penn. St. In still another case in that court it was held, that where a boy was carried against his will for five miles, and in returning home received injury, the wrong-doer must respond in damages. Drake v. Kiely, 93 Penn. St. 492. The case of Lovett v. Salem, etc., R. Co., 9 Allen, 557, decides that a railroad company is liable for injury to a child ten years of age, who was wrongfully on a street railway car, and jumped from it, while it was moving rapidly, at the direction of the driver, the court placing its decision upon the ground that the child was young and could not be expected to act as an adult would do. 358. It was held in Kline v. Central Pacific R. Co., 37 Cal. 400, that the company was liable where a boy sixteen years of age leaped from a train upon which he was a trespasser, at a show of force displayed by the conductor, and the principle asserted in Lovett v. Salem, tc., R. Co., supra, was accepted as the ruling one. In Meeks v. Southern Pacific R. Co., 56 Cal. 513; s. c., 38 Am. Rep. 67. an infant of six or seven years of age was sleeping on the track and it was held that as those in charge of the train were bound to keep a vigilant watch, the company was liable for injuring the child that its employees might have seen and rescued from danger. VOL. LVIII - 50 Indianapolis, Peru and Chicago Railway Company v. Pitzer. A very able court, speaking by one of its ablest judges, said of the duty of an engineer: "If however he sees a child of tender years upon the track, or any person known to him to be, or from his appearance giving him good reason to believe that he is insane, or badly intoxicated, or otherwise insensible of danger, or unable to avoid it, he has no right to presume that he will get out of the way, but should act upon the belief that he might not, or would not, and he should therefore take means to stop his train in time." Lake Shore, etc., R. Co. v. Miller, 25 Mich. 274. Other cases assert similar doctrines, and to them we refer without further comment. Baltimore, etc., R. Co. v. State, 33 Md. 542; Isbel v. New York, etc., R. Co., 27 Conn. 392; Isabel v. Hannibal, etc., R. Co., 60 Mo. 475; East Tennessee, etc., R. Co. v. St. John, 5 Sneed, 524. The complaint explicitly avers that there was no negligence on the part of the parents, so that the question turns, so far as the element of contributory negligence is involved, solely upon the conduct of the child. It is contended that the injury to the child was so remote that it cannot be attributed to the negligent act of the appellant. This question has been recently so fully discussed by us that we do not deem it necessary to again enter upon an extended discussion of the subject. Louisville, etc., Ry. Co. v. Falvey, 104 Ind. 409; Terre Haute, etc., R. Co. v. Buck, 96 Ind. 346; s. c., 49 Am. Rep. 168; Dunlap v. Wagner, 85 Ind. 529; s. c., 44 Am. Rep. 42; Billman v. Indianapolis, etc., R. Co., 76 Ind. 166; s. c., 40 Am. Rep. 230; Cincinnati, etc., R. Co. v. Eaton, 94 Ind. 474; s. c., 48 Am. Rep. 179. Many of the cases we have here cited assert a doctrine in strict harmony with our own cases, and indeed the doctrine is expressly held in the famous squib case, upon which authors and courts have founded their statements and decisions for many years. In that case no wilful or malicious tort was committed, for the defendant threw the lighted squib in sport, and this being passed from hand to hand, at last struck the plaintiff's ward, and put out his eye. All the judges agreed that the defendant was liable, although they differed as to whether the action should be case or trespass, one of the judges saying that "Wherever a man does an unlawful act he is answerable for all the consequences." Scott v. Shepherd, 2 W. Bl. 892. There is, in truth, no case that has been recognized as sound, that holds that the rule as to the responsibility of the wrong-doer is |