Westbrook v. Mobile & Ohio Railroad
Mississippi Supreme Court
From the circuit court of Clay county. Hon. Lock E. Houston, Judge. This is an appeal from a judgment sustaining a demurrer to the declaration of appellant, who was plaintiff in the court below. The action was for damages against the railroad company for personal injuries to the plaintiff. Several pleas were filed, to which a demurrer was interposed. The demurrer was extended to the declaration, and sustained, and the case dismissed.
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From the circuit court of Clay county. Hon. Lock E. Houston, Judge. This is an appeal from a judgment sustaining a demurrer to the declaration of appellant, who was plaintiff in the court below. The action was for damages against the railroad company for personal injuries to the plaintiff. Several pleas were filed, to which a demurrer was interposed. The demurrer was extended to the declaration, and sustained, and the case dismissed. The plaintiff, a child four or five years old, was struck and injured by a train while crossing the track of defendant. This was at the crossing of a well-known…
1Opinion of the CourtArnold, C. J.
We are unable to subscribe to the doctrine that a minor four or five years of age, shall, as matter of law, be charged with contributory negligence, and barred from recovery in an action brought by him or in his behalf for an injury inflicted upon him by another, because he did not exercise reasonable care to avoid the injury. A child of such age, is generally incapable of choosing between right and wrong — between good and evil — and between care and rashness. From him duties to others are not exacted, but from others to him duties are recognized and enforced.
At common law, a child under…
2Cases cited3 opinions
- Railroad Co. v. GladmonSupreme Court of the United States · 1873
- Pratt Coal & Iron Co. v. BrawleySupreme Court of Alabama · 1887
- Lannen v. Albany Gas Light Co.New York Supreme Court · 1865
3Cited by29 opinions
- Atlanta & Charlotte Air-Line Rwy. Co. v. GravittSupreme Court of Georgia · 1894
- Mattson v. Minnesota & North Wisconsin RailroadSupreme Court of Minnesota · 1905
- Gunn v. Ohio River R.West Virginia Supreme Court · 1896
- Gordon v. LeeMississippi Supreme Court · 1949
- Bottoms v. Seaboard & Roanoke RailroadSupreme Court of North Carolina · 1894
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