Daniels v. Clegg - 28 Mich. 32 (1873)

Rule:

As to children upon the track, ahead of a train, who could be seen by the engineer, or other persons known to him to be incompetent or deprived of any of their faculties necessary to their safety under such circumstances, it is held that an engineer was bound to act with reference to the incapacity of such persons thus appearing or known to him, and so far as in his power, to govern his train accordingly, until such persons were out of danger. And the same principle is recognized with respect to the rights and duties of street railway companies towards children upon, or getting on or off, their cars.

Facts:

In his action in trespass, plaintiff father Richard Clegg declared in trespass his damages for injury to his buggy and horse. Defendant Calvin Daniels pleaded general issue. At trial in the circuit court, plaintiff gave evidence that tended to show that while his daughter, who was about 20 years old, was driving plaintiff’s horse and buggy, she came upon a hill. Defendant did not turn out for her but drove directly on. The daughter turned as far as she could, but a collision ensued by which the buggy in which she was riding was overturned and damaged and she was thrown out on the road. The circuit court entered judgment in plaintiff’s favor where the plaintiff recovered a judgment for fifty dollars. Defendant challenged a judgment of the circuit. Defendant brought the action by writ of error and bill of exceptions.

Issue:

Did the court err in ruling in favor of plaintiff in its action in trespass?

Answer:

No.

Conclusion:

The judgment was affirmed by the court. In affirming, the court held that the trial judge properly charged the jury in jury instructions with substantially the same principle, namely, that the plaintiff could not recover if he or his daughter were guilty of negligence contributory to the injury complained of, whether appellant was guilty of such negligence or not. The jury was properly charged that in deciding whether the daughter exercised ordinary care in driving the horse or whether she was guilty of negligence, the jury could consider the age of the daughter and the fact that she was a woman.