Birge v. Gardiner

| Conn. | Jul 15, 1849

Church, Ch. J.

This action was brought against the defendant for negligently placing and leaving a heavy gate, so that the plaintiff, a child under the age of seven years, was severely injured, by its falling.upon him, and breaking his leg. It was agreed that the gate was erected, by the defendant, upon his own land ; and he denied any negligence. But he claimed, if he had been in fault, that the falling of the gate and the injury of the plaintiff were caused by the wrongful and negligent conduct of the plaintiff himself, by shaking and pulling the gate, without any necessity, and by an act of trespass on his part.

The principle is well settled, that although a defendant has been guilty of culpable fault or negligence, producing an injury, yet if his act was not wanton and intentional; and if the plaintiff, by his own misconduct, or neglect amounting to the want of ordinary care, essentially contributed to produce the result, he cannot recover. Vanderplank v. Miller, 1 Moo. & Malk. 169. (22 E. C. L. 280.) Pluckwell v. Wilson, 5 Car. & Pa. 375. (24 E. C. L. 368.) Luxford v. Large, 5 Car. & Pa. 421. (24 E. C. L. 391.) Williams v. Holland, 6 Car. & Pa. 23. (25 E. C. L. 261.) Woolf v. Beard, 8 Car. & Pa. 373. (34 E. C. L. 435.) 2 Stephens N. P. 10. 18. Lynch v. Nurdin, 1 Ad. & Ell. N. S. 29. (11 E. C. L. 422.) Rathbun v. Payne, 19 Wend. 399. Beers v. Housatonuc R. Road Co., post. It therefore became a question very material in this case, whether the plaintiff could be truly said to have been guilty of negli- or such a degree of it, as that the defendant could legally avail himself of it, in his defence. The plaintiff was a child, "without judgment or discretion ; and it was submit- ■ ted to the jury to say, whether such a child ought to be chargeable with fault so as to defeat his recovery ; or whether or not the acts done by him, were not rather the result of childish instinct, which the defendant might easily have foreseen ? It might perhaps have been going too far, for the court to have said, as a matter of law, that a child of this age could not be so blameworthy as to excuse the defendant. We will not say, that such cases may not be imagined, or may not sometimes occur. But it was favourable to the defendant, and he cannot complain of it, that the age and condition of the plaintiff, connected with the circumstances of the case, were put to the jury, for them to determine what degree of fault, if any, was imputable to the plaintiff. It cannot be claimed, that the law would require the same acts of caution and prudence in a child, as in a man. Very much the same course was taken, by the judge at Nisi Prius, in the case of Lynch v. Nurdin, above cited, and was approved by the court of Queen's Bench.

It was said in argument, that the plaintiff' was a trespasser, although he was a child, and as such was responsible for the civil consequences of his own acts of trespass. We do not decide, whether, in this case, the plaintiff was a trespasser, or not. There are many acts deemed acts of trespass, which involve civil liabilities, where there is no fault; and on the ground, that where one of two innocent persons must suffer, he who is the proximate cause of the injury, must be responsible for it. But this is not a case between \ faultless parties. The gross negligence of the defendant is here the cause of action ; Und he alone is responsible for the entire consequences of it, unless there has been fault on the plaintiff's part.

There is a class of cases, in which defendants have been holden responsible for their misconduct, although culpable acts of trespass by the plaintiffs, produced the consequences ; as in the cases of spring-guns and man-traps, See. Tide Johnson v. Patterson, 14 Conn. R. 1.

We think this case was properly submitted to the jury ; and that there ought not to be a new trial.

In this opinion the other Judges concurred, except Waite, J., who was not present.

New trial not to be granted.