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16 freight cars on the long siding; that re- by bell or whistle; that the child was a spondent had left the child in charge of his trespasser; and that the contributory negliwife, its mother, at their home, who permit- gence of the parents bars a recovery by reted her to cross the tracks to the hill on the spondent. As we view the evidence, in conopposite side and play with other children; nection with the special findings, there is no that, after watching the child go across, the showing of negligence on the part of the apmother went into her kitchen, leaving the pellant sufficient to make it liable for damdoor open; that shortly thereafter the train ages. But, assuming that such negligence did backed down the long siding, when the child, exist, we are nevertheless compelled to hold returning alone and unattended, stepped on that the negligence of the respondent as fathe track and was killed; that no employé ther of the child, and the mother in whose of the appellant saw the child until after the care she was left, was such that no recovery accident; that no employé was on the car by respondent can be permitted. The child which struck the child; and that appellant was of such tender years that no negligence made no claim to ringing its bell or sounding could be imputed to her. She was unable to its whistle, its employés being engaged in protect herself or realize the dangers to moving freight cars within its switching which she was subjected. Had she heen, not yards, and not, according to its contention, killed, but permanently injured, and were upon any public street or highway. The only she now prosecuting an action for damages, substantial conflict in the evidence was over the question whether the negligence of her respondent's contention that a well-defined parents could be imputed to her and bar a pathway existed, which was used by the gen- recovery might possibly arise. Here the faeral public and intersected the tracks immedi- ther sues for damages resulting from the ately in front of his house. In his brief the death of his child, and he will be the sole respondent continually assumes the existence beneficiary of any judgment recovered. In of a highway, called “Ninth street," upon Bellefontaine, etc., Ry. Co. v. Snyder, 18 Ohio which the railway tracks were located, and St. 399, 98 Am. Dec. 175, an action prosecutupon which his house fronted to the east; ed by a minor child, by her next friend, to but there was no competent evidence show- recover damages sustained by personal ining that any such street ever existed. Re: juries to herself, the Supreme Court of Ohio spondent contends that, at the time the child held that the negligence of a parent or cuswas killed, she was on Ninth street opposite

todian of the child, who was by reason of his house, on the above-mentioned alleged tender years unable to

to care for herself, pathway, that had been used by the public could not be imputed to the child, so as to for many years. There was evidence given defeat her right to recover damages from a by different witnesses to the effect that | railway company for the injuries caused by people, both adults and children, living in its negligent acts. But in Bellefontaine Ry. the immediate neighborhood, bad frequent- Co. v. Snyder, 24 Ohio St. 670, when the faly crossed the tracks; but the evidence fails ther of the same child afterwards sued in to show that there was a well-worn track at his individual right for damages to himself avy particular point, as seems to be contend- arising from the loss of the services of his ed by respondent. A number of excellent child in consequence of the same accident, photographs were admitted in evidence with the Supreme Court of Ohio held that he the consent of both parties; but while they could not recover, as his right to do so was most clearly and distinctly show the build- barred by his own negligence; it having ajings, railway tracks, abutment, sea wall, pil- | peared that he intrusted the child to the cusing, respondent's dooryard, fence, and gate, tody of another, who was guilty of negliwith other surroundings, it is nevertheless gence contributing to the accident. This disimpossible to distinguish upon them the tinction between an action for the benefit of slightest indication of any street or any path- the child and for the sole benefit of the neg. way across or upon the railway tracks at any ligent parent has been recognized by this point near the scene of the accident. The and other courts. Roth v. Union Depot Co., substantial effect of the evidence as disclosed 13 Wash. 525, 43 Pac. 641, 41 l'ac. 253, 31 by these photographs and the oral testimony L. R. A. 855; Eskildsen v. Seattle, 29 Wash. of the various witnesses is that the different 583, 70 Pac. 64; Pratt Coal & Iron Co. v. persons who lived in the neighborhood and Brawley, 83 Ala. 371, 3 South, J..), 3 Am. who walked back and forth over the tracks St. Rep. 751; Williams v. T. & P. R. R. Co., did so at such points as were severally con- CO Tex. 205; Bamberger v. Citizens' Street venient to them. But, were we to assume R. Co., 31 S. W. 163, 95 Tenn. 18, 28 L. R. A. that a distinct pathway did exist opposite 486, 49 Am. St. Rep. 909. respondent's house, we could not, for rea- The unfortunate death of this little girl sons hereinafter mentioned, permit the re- naturally arouses every feeling of human spondent to recover in this action.

sympathy, and doubtless appealed to the juThe appellant contends that the train was ry; but the facts are that respondent's wife, not running at an excessive rate of speed; with whom he left the child, assented to her that there was no public street, crossing, or going across the tracks unattended; that path, at or near the point of the accident; the mother watched her while leaving; that that it was not required to give any signal she was permitted to return alone; and tha:

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while doing so she was struck by the train. do so in his own right, would defeat this unbefore any of the switching crew saw her or derlying principle by a mere change of form, knew of her presence. The acts of the par- when the entire recovery, in either event, ents constitute the most flagrant negligence goes to him alone. Upon principle, we think upon their part. They must have known that that, no matter how the suit is broughtthe very existence of the railroad tracks whether as administrator or as father-it was itself a sign of danger; that an unat- can be defeated by the father's contributory tended child only six years of age should not negligence, when he is sole beneficiary." have been permitted to play upon or near Assuming that the evidence in this case them; and that, if allowed to do so, the disclosed facts sufficient to go to the jury child would in all probability be seriously upon the question of the appellant's negliinjured or killed. Parents cannot delegate gence, yet the negligence of the parents of to trainmen or other persons in charge of this child was sufficient to demand a judgdangerous agencies the care and protection ment for appellant. The house in which of their unattended children. In the case of respondent lived was located upon and abutWesterberg v. Kinzua Creek, etc., R. R. Co., ted the railroad. The evidence and exhibits 142 Pa. 471. 21 Ati. 878, 24 Am. St. Rep. 510, show the place of the accident to have been the Supreme Court of Pennsylvania said: "If a veritable death trap for a small child. we concede there was negligence on the part The mother, as found by the jury, had been of the company in permitting the car to be- left in the custody of the child at the time come detached and run down the road with- of the accident. She took the child to the out any one to control it, the fact remains door, and permitted her to cross the tracks that the children were walking upon the and play with other small children. The track; and, while they could not be charged testimony shows that the tracks were frewith contributory negligence by reason of quently used by appellant. The parents should their tender years, this suit is brought by have known that cars might be passing and their parents, who may be properly so charg- switching there at any moment. They could ed. A parent owes a reasonable duty of pro- not have placed their child in greater peril. tection to his children, and cannot cast the The mother's testimony shows that she must whole of that duty upon strangers. If he have been aware of its dangerous position. permits them, when of tender years, to wan- No parent should be permitted to recover for der off in places of known danger, and by his own benefit damages resulting from the reason thereof an accident occurs to them, death of his child, where he himself has been he has no just claim to make others bear guilty of negligence which proximately conthe consequences of his own neglect. We tributed to the accident causing such death. have a number of cases in which this prin- The honorable trial court erred in refusing ciple has been enforced. In Philadelphia, to sustain the appellant's motion for judg. etc., R. R. Co. v. Hummell, 44 Pa. 375, ment notwithstanding the general verdict of 84 Am. Dec. 457, it was said that children of

the jury. a tender age cannot be upon a railroad track The judgment is reversed, and the cause without a culpable violation of duty by their remanded, with instructions to dismiss the parents or guardians. In Philadelphia, etc., action. R. R. Co. v. Long, 75 Pa, 257, it was said by Agnew, C. J.: "To suffer a child to wan- FULLERTON. MOUNT, ROOT, and DUNder in the street has the sense of permit. If BAR, JJ., concur. such permission of sufferance exist it is neg. ligence.' To the same point is Cauley v.

(17 Wash. 283) Pittsburg, etc., Ry. Co., 95 Pa. 398, 40 Am.

STATE v. BARUTH. Rep. 664. And see, also, Gillespie v. McGowan, 100 Pa. 144, 45 Am. Rep. 365." See, al

(Supreme Court of Washington. Oct. 10, 1907.) so, 1 Thompson's Commentaries on Law of 1. CRIMINAL LAW-DECLARATIONS OF DECENegligence, § 333; Evansville, etc., R. R. DENT - ADMISSIONS BY ACCUSED -- STATE

MENTS CALLING FOR DENIAL. Co. v. Wolf, 59 Ind. 89; Jeffersonville, etc.,

Ante mortem statements by deceased in the R. R. Co. v. Bowen, 40 Ind. 545; Senn v. presence of accused are not for that reason Southern Ry. Co., 124 Mo. 621, 28 S. W. 66. / alone admissible against accused as admissions, In Bamberger v. Citizens' St. R. Co., 31 S.

unless they relate to the matter at issue and

are addressed to accused, or made under such W. 163, 95 Tenn. 18, 28 L. R. A. 486, 49 Am.

circumstances as would naturally call for some St. Rep. 909), the action was prosecuted by action or reply from persons similarly situated. the father, as administrator of his deceased [Ed. Note.-For cases in point, see Cent. Dig. child, for the benefit of himself as next of

vol. 14, Criminal Law, $ 898.] kin, and the Supreme Court of Tennessee, 2. SAME-PRESENCE OF ACCUSED. discussing his contributory negligence, said:

Ante mortem statements made by deceased

after he had been shot, and while accused "The underlying principle in the whole mat

sitting at a table in an adjoining room with ter is that no one shall profit by his own the door open and within easy hearing, with negligence, and to allow the father, who has reference to the shooting, its immediate cause, been guilty of negligence, to recover, notwith

conduct of both decedent and accused while it

was going on, and everything related by detanding that negligence, when he brings the

ceased which might properly constitute anit as administrator, although he could not gestae was admissible, but declarations made by

91 P. 62

deceased after the door between the rooms had in the front room of the house talking to a been closed, and while defendant was in con- Mr. Le Ferre, who had also called upon him; versation in the other room, were inadmissible

that Mrs. Baruth was not then at home; against her, though she might by listening actually have heard the statements made and opened that Mr. Le Fevre stayed for about a half the door and denounced them as false.

an hour after the witness and Steele ar3. SAME-RELEVANCY.

rived, leaving just about the time Mrs. BarAnte mortem declarations made by de

uth returned; that after the departure of ceased after he was shot, in defendant's presence, concerning her conduct toward him at

Le Fevre Jr. Baruth arose from the couch times, other than when the shooting occurred, and took the chair vacated by him; that Mr. the fact that deceased was at one time possessed Steele sat next to him, and the witness sat of considerable property which he lost through defendant's misconduct, and expressions of mal

on the opposite side of the same room; that ice and hatred against her, were irrelevant.

Mrs. Baruth took a seat at a table in an 4. HOMICIDE-CAUSE OF DEATI-NEGLIGENT

adjoining room—the kitchen—placed just TREATMENT BY PHYSICIAX-EVIDENCE. to the right of the door opening between the Under the rule that unskillful or negligent

rooms, in sight of the witness, the door betreatment of the wound by the wounded person or his physician which may have aggravateri de

tween the rooms being open; and that, while ceased's condition and contributed to his death the parties were in these positions, Mr. does not relieve the assailant from liability, Baruth told the story of the shooting. This unless such negligent and unskillful treatment

story the witness repeated, over the objecwas the sole cause of death, defendant was not entitled to show that the wounds inflicted on

tion of the appellant, in the following landeceased were not mortal in more than 1 per guage : "A. Mr. Baruth started it by saying: cent. of the cases, and that the treatment af- "This is the first time that I ever revealed a forded deceased by the physicians in charge was

secret regarding my family, or spoke to any not the best medical treatment. 5. CRIMINAL LAW – APPEAL - PRESENTATION

man in Medical Lake or anywhere else of OF ERRORS IN TRIAL COURT.

this trouble about my family in any way, The court's omission to give cautionary in- and I defy any man to say so, but this is structions as to the evidence against accused

getting to a point where I will have to talk, will not constitute error available on appeal, where no such instructions were requested.

I guess.' And he went on to say that, when

he got home Sunday evening, he came in Appeal from Superior Court, Spokane

the house, he said, and laid down on the sofa, County; W. A. Huneke, Judge.

and picked up a paper, and his wife came in Josephine Baruth was convicted of man

and said: "Where have you been to-day?' slaughter, and appeals. Reversed, and new

(Objection by defendant.) The Court: This trial granted.

is a statement the deceased made? The WitSullivan, Yuzum & Suzum and J. J. Gor- ness: Yes, sir. The Court: Proceed. A. don, for appellant. R. J. Barnhart, Fred (continued). He said: 'She asked me where C. Pugh, and A. J. Laughon, for the State. I had been. and I made no reply. I

laid there and went ahead reading just as FULLERTOX, J. On March 20, 1900, though she wasn't talking. She next called the appellant shot one C. L. Baruth with a me a few vile names, and by and by went revolver, inflicting upon his person certain off and left me, and at night I retired. The wounds from which he died four days later. next morning she comes in again and fetched Thereafter she was informed against for in a coat and spread it down, and she says: murder in the second degree, tried and found Here is some mud on this mat. That proves guilty of manslaughter, and sentenced to the statement I made last night to you, and imprisonment in the penitentiary for a term here is also a hair, and it is not mine, either of 10 years and to pay a fine of $1,000. From at the same time pulling a hair off and the judgment and sentence pronounced upon showing it to him: She says: "This is not her, she appeals.

my hair either.' He said he still made no The assignments of error relate chiefly to leply, but laid there until she retireil to the the admission and exclusion of evidence, and kitohen, and went on about getting breakthe giving of certain instructions and fail- fast again, and she commenced to tell the ing to give certain others. These we will no- children what kind of a man he was, and he tice in the order they are discussed in the Silys, This much I couldn't stand,' and he appellant's brief.

jumps up out of bed and grabs his pants and The state sought to prove the manner in went through into the kitchen door and sayswhich the crime was committed by showing Q. Indicate. A. Here is where he was. He the declarations of (. L. Baruth malle to came through these two doors this time, certain of his neighbors on the evening of this door and this coor, and he asked her, the day the shooting occurrell. To that end repeating the words he used, 'What in hell it called as a witness one W. E. Connelly. and damnation is the matter with you?' he Mr. Connelly, after testifying to his says. Those are the very words he said to quaintance with the deceased and certain her. She retired through this door and out preliminary matters, further testified that into this bedroom here, and through this he, in company with one Charles Steele. way, and got a revolver and returned, and (alled at the Baruth home about halt past begin shooting at him, and he claimed when i in the evening of the day of the shooting; she returned to the room where he was that Mr. Baruth was then lying on a couch standing he was stooped over ready to put on

his pants. He had his pants in his hand , Steele and Mrs. Baruth with respect to the when she fired the first shot, which struck shooting? A. I did not. Q. And the subsehim here (indicating). He grabs a chair up quent conversation with the deceased on that that sat here, and held it up between him night was not in the presence of the deand her, and he says she was shooting rery fendant? A. The remainder was between rapid, and he held the chair up between Baruth and I alone. Q. In that conversation them, and backed into this room through this did Mr. Baruth repeat the names which he door, and, just as he got the door closed, he said his wife called him? A. Yes, sir. Q. stood at the side of the door here and he What did he say they were, Mr. Connelly ! looks around, and she stands here at this (Objection by defendant. Overruled. Excepwindow right by the side of him with the tion.) Q. If you recall what those names gun up, looking through the window. He were, state then? A. Well he said she called retreats back, and he says: "For God's sake him a 'pimp' and a 'whore master,' and that don't shoot me any more. You have shot he was chasing women all the time, and a me now.' That there is where Mrs. Baruth few other vile names. I couldn't say exsays, 'You ought to have stopped when I actly what he did say. He says, “This was told you.' Q. She said that at that point? a common occurrence when I came home,' Did he say that she said that? A. Yes; he and that he paid no attention to it, when he said that she said that he ought to have came home and dressed up. He said: 'Always stopped when she told him, so he retires when I went away from home dressed up, to this rooni again, and sat down and sends put on a white shirt and went down town, for McCorkle, sends the little girl over to and came home there was always trouble.' " McCorkle's and McCorkle came

came over and Mr. Steele was also called as a witness. went for a doctor. Q. Do I understand that He described the situation pretty much as Mrs. Baruth stated to Mr. Baruth that then it was described by the preceding witness, is when he ought to have stopped? A. Mrs. | probably placing Mrs. Baruth a little closer Baruth said to Mr. Baruth he ought to have to the open door than she was placed by stopped when she told him to. The Court: Mr. Connelly, and adding that the place Did she interrupt his statement to you, when where she sat was about 10 feet distant from he was making that statement? The wit- | the position of Mr. Baruth. The record then ness: She just says- The Court: While he shows the following: "Q. Proceed, Mr. Steele, was telling you that? A. When he was tell- and relate to the jury as near as you can ing me that she says he ought to have recall what was said and done during the stopped when she said so. Q. I don't under- conversation that has been referred to at stand the statement, and I don't think the the time and place referred to, and when jury does. You say he stated, Mr. Baruth the parties were maintaining toward each stated that she said he ought to bave other the relative positions that you have stopped? A. She says, when Baruth says described, touching the shooting and cirthat, she says to Steele right there—she cumstances that led up to and surrounded turns to Steele and says, 'He ought to have the shooting? Mr. Swanson: We object stopped when I told him to.' Q. Proceed for the reason it has not been shown the with any further conversation that you heard defendant would have heard the statement there or which was had, either by the de- made at the time, but as in fact the cirfendant or nr. Baruth in her presence. A. cumstances show that she would not be apt He said he sent for Mr. McCorkle to come to bave heard it. He says that the way over and he came, and he sent him for the they were sitting it must have been about doctors. Q. During that conversation did

10 feet, and from the relative positions be tell you how many times he was hit dur- shown by the map the voice would have to ing the shooting? A. No, sir; he didn't say travel first in an easterly direction then --yes; he said when we went in he was west to this door, and the circumstances shot twice. Q. I mean at this conversation. show that this defendant could not very Do you recall anything further of the con- well have heard it, and I think anything as versation that passed between you and Mr. questionable as that ought not to be allowed Baruth in the presence of the defendant, or to go in here. The statement was self-serythat was said by the defendant at that time? ing, not a dying declaration, and not a part A. Mr. Steele he gets up, and goes into the of the res gestae. The Court: Objection overroom and talks with Mrs. Baruth and Mr. ruled. Exception. Q. Proceed, Mr. Steele. Baruth, and I sat there and talked for A. You want the story related ? Q. I want probably half an hour that he was in there. the story related at that time and place, Q. During this conversation just him and and any interruptions or suggestions that you there alone? A. What I have stated may have come from Mrs. Baruth or any was heard by all. Q. When Mr. Steele went question or statement that you or Mr. Coninto the kitchen where Mrs. Baruth was, nelly or any one else present made in the do you know whether or not the door was presence and bearing of Mrs. Baruth respect(closed after him. A. When he went into the j ing this matter-the substance of it as near kitchen, he closed the door behind him; as you recall. A. When he started to tell yes, sir. Q. Did you from where you were his story, he started out by saying: "This sitting bear any conversation between Mr. is the most contemptible piece of humanity

that God Almighty erer put the breath of , dollar, and that she was always continually life in.' Then he says: "This all comes from ' telling stories outside to people trying to my putting on a white shirt and going down, make him out an awful man and such as town Saturday evening. IIe says: 'When that. I don't remember anything more just I was going to lodge, I put on a white shirt, now. Q. Did he go into any particulars and and I goes down to lodge, and she makes · tell you-do you remember what this woman a great kick before I started.' And he says: was saying to the children which angered Sunday morning I got up and put on my

him? A. He said that she was telling the collar and wore my white shirt down town children about him being with other women. on Sunday. This was the day before the He didn't come out and say the words that shooting, and he said: "There was always a she used at all. Said that she was telling kick whenever he put on a white shirt and them what a bad man he was, and how he went out.' So he says: 'I never before have had been out with other women. Q. During revealed any secret or any trouble that ever the statement which he then and there happened in my family.' And he went on made, do you recall any interruption or any to tell about when he came home the night statement that Mrs. Baruth herself made, or before, on Sunday evening. He laid down i any response or any denials or any stateon the lounge, and she came around and was ment whatever that she made? A. Yot accusing him of being with other women, : right at that time; no, sir. Q. Did she and she called him violent names, and he make any statement or response whatever said he said nothing but went to bed, and during that time or until later when you the next morning she came in and was exam- and she were alone? A. No. Q. Were any ining his clothes. He said she took his un- persons in the house' other than the cbilder clothes and turned them wrong side out, ! dren, Mr. and Mrs. Baruth, yourself, and and examined them all over. She examined Mr. Connelly at the time this statement was them all through to see if she could find being made? A. If there was, I didn't see some hair or anything, and then took his' them. I was only in the two rooms—the overcoat. It had mud on it, and she spread kitchen and the sitting room. Q. You knew that out and showed him, showed him nothing about the other rooms, the bedwhere he had had his overcoat down in the rooms? A. No, sir. Q. Afterwards at any mud, and he said that he didn't say any- time during the evening did you have any thing to her, and she went on calling him other conversation, did you have any connames. Q. Did he repeat the names that he versation with Mrs. Baruth herself? A. I claimed she called him? A. No; I don't re- ! did. Q. About how long was it after this member. Q. Proceed. A. (continued). So talk you heard from Mr. Baruth? A. Probshe comes out in the kitchen and commenced ably 10 or 15 minutes. Q. Where did you telling the little children a lot of stuff that have that conversation? A. In the kitchen. wasn't for little children to hear and it made | Q. Were any other persons present beside him angry, so he says he jumped out of bed, : yourself and Mrs. Baruth? A. No, sir. Q. and went out and asked her what in the Where was Mr. Baruth and Mr. Connelly? hell and damnation she was doing, and he A. They were in the sitting room. Q. Was says she run around and went through the or was not the door leading from the kitchen kitchen door and run around the house. He to the sitting room open while this converproceeded to put on his pants, and while he sation was going on with Mrs. Baruth? A. was putting them on she came running in No; I closed it when I went out. and fired at him, so he says he retreated A. (continued). In the meantime, while me back in the bedroom as fast as possible, and, and Mrs. Baruth was talking, Mr. Connel. as he was going, he picked up a chair to ly and Mr. Baruth in the other room, every shield the bullets away. After he went in- time they would say anything we could hear to the bedroom, he said he looked out of them distinctly- Q. Was the door closed? the window, and she had gone around there i A. With the door closed, yes, sir; and no looking through the window, and, if I re- matter whether we was busily engaged in member right, he said she shot through the the subject or not Mrs. Baruth would stop wall or door or something from the outside, and listen whenever Mr. Baruthi would and so he said he retreated back further in speak, and, of course, if it didn't amount the other bedroom or back the other way to anything pertaining to this incident, she where she couldn't get at him, and I guess would go ahead then with her story with that is the most of his story. Q. How many me, but, if it was about her, relating to this shots hit him? A. He said she hit him incident, she would listen. One time in partwice. He said several shots were fired, but ticular while we were talking Mr. Barutlı only two hit him. Q. Do you recall anything was merely relating over again what he had further said at that time and place while related to us—that is, one part of it, and you were sitting in the relative positions that is when she came up to the bedroom suggested before by you, either by the de- door, or at least when she came in and ceased or by the defendant, Mrs. Baruth, was shooting at him and he says, well, he touching upon the shooting? A. He said started to tell, when she stopped, we were that at one time, he was worth $10,000 and talking and she stopped to listen, and I she broke him up until he didn't have a heard him distinctly, the words he used, he

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