Collins v. South Boston Railroad

142 Mass. 301 | Mass. | 1886

Field, J.

We cannot say, as matter of law, that the parents of the plaintiff were negligent in permitting him to go upon the streets with his sister, who was then nearly eleven years old, or that the sister had not sufficient intelligence and discretion to be entrusted with the care of him. Mulligan v. Curtis, 100 Mass. 512. Lynch v. Smith, 104 Mass. 52. O' Connor v. Boston Lowell & Railroad, 135 Mass. 352. Neither can we say that there was not evidence for the jury of negligence on the part of the driver of the car. There was evidence that he was looking back. Commonwealth v. Metropolitan Railroad, 107 Mass. 236. The driver of a horse car in a street where there are children may well be required to manage his car with reference to all the risks that may reasonably be expected, and among these may be reckoned the risks arising from the heedlessness and indiscretion of children in the street.

All the evidence in favor of the defendant may be disregarded in considering the questions of law before us, and the evidence of Nellie Collins is not necessarily to be taken as true against the plaintiff, if there is other evidence in his favor which contradicts it.

It must be taken, on any view of the case, that the plaintiff-ran across the track in front of the horses, and was hit either by the off fore leg or off hind leg of the off horse, or by the right-hand side of the dasher of the car or of the body of the car, and thus thrown down and under the car, or that he fell upon or near the right-hand rail and was drawn under the car. His sister left him just before they reached the track on which the car was coming, and when the horses were dangerously near to them; and either ran across in front of the horses, or ran back, leaving him to run across alone, while she afterwards followed him, going either in front of or behind the car. It was said in Lynch v. Smith: “ It does not necessarily follow, because a parent negligently suffers a child of tender age to cross a street, that therefore the child cannot recover. If the child, without being able to exercise any judgment in regard to the matter, yet does no act which prudence would forbid, and omits no act that prudence would dictate, there has been no negligence which was directly contributory to the injury.” 104 Mass. 57. But if the child does act in a manner which would be careless in a prudent person of mature years and ordinary intelligence, and this carelessness contributes to the injury, what is the test by which the conduct of thé child is to be tried in determining whether it has exercised due care?

Courts have held that, up to a certain age, not very accurately defined, it must be conclusively presumed that a child has not sufficient intelligence and discretion to exercise due care under the circumstances and in the place in which he is found, and that it is negligence on the part of the persons who have charge of him to permit him to go there unattended. If such a child has not acted as reasonable care would dictate, judged by the ordinary standards for adult persons, and this has contributed to the injury, and if the persons having the charge of such a child have negligently permitted him to go there alone, both these facts constitute negligence which will prevent him from maintaining an action. There is also an age within which courts have held that one child is conclusively presumed not to have sufficient intelligence and discretion to take charge of another who is younger, and that it is negligence on the part of the parents or guardians of such children to permit them to go together to places of 'danger, and if they do, and the children do not use reasonable care, and this has contributed to the injury, they can-' not recover. Beyond these ages, courts have left it to the jury to determine whether the parents or guardians were negligent in permitting a child to go alone to a place of danger, or in permitting him to go there in charge of another child, and if it is found that they were not negligent, then it has been left to the jury to determine whether the child or children reasonably exercised that degree of care of which they were capable, and it has been said that it is only necessary for them “ to exercise such capacity as they had.” The care which an adult person is bound to exercise is said to be the care which a person of ordinary intelligence and prudence would exercise, and is not determined by the amount of intelligence which he actually possesses, unless he is non compos mentis; and as the law, as far as is practicable, endeavors to establish general rules of conduct, it is probable that the more accurate statement of the law for children is the one usually made, namely, that a child is to be held to the exercise of that degree of care which may reasonably be expected of children of his age, or which children of his age ordinarily exercise. This court, with more or less hesitation, in what it deems plain cases, according to common experience, has declared that the acts or conduct of an adult under the circumstances constituted, as matter of law, contributory negligence, and the question arises whether the court can make the same declaration concerning the acts or conduct of a child of tender age, who yet is so old that they cannot say, as matter of law, that he has not sufficient discretion to be permitted to act on his own judgment. We think it has been in effect decided that the same general principles govern courts in either case, although the degrees of care required are different. In Mattey v. Whittier Machine Co. 140 Mass. 337, the plaintiff was six years and seven months old at the time of the accident, and the opinion implies that there might be cases in which the court would hold, as matter of law, that a girl of that age was guilty of contributory negligence. See O'Connor v. Boston Lowell & Railroad, ubi supra.

In Messenger v. Dennie, 137 Mass. 197, and 141 Mass. 335, the plaintiff was eight years and nine months old, and the court held that there was no evidence of due care on his part, and that he could not recover, saying that “his injury was the natural consequence of his careless act.” Take the case of boys in the street suddenly and intentionally running across in front of trotting horses for the purpose of showing who dares run the nearest, or take the most risk. Suppose the driver’s testimony in the case at bar is true, that the plaintiff, after having crossed safely, turned round and ran under the side of the car, would not that be contributory negligence, if the child were old enough to act alone? In instructing juries that the question for them to decide is whether the plaintiff or the plaintiff's custodian has exercised that degree of care which might reasonably be expected of a child of his age, or which is ordinarily shown by children of the same age, is it intended that they may make allowances for any spirit of recklessness or of mischief which they may think is commonly found in such children, or must they consider only their capacity of self-control, and their intelligence and ability to understand the danger, and the consequences which may reasonably be expected to follow from their conduct? It would seem that, if children unreasonably, intelligently, and intentionally run into danger, they should take the risks, and that children, as well as adults, should use the prudence and discretion which persons of their years ordinarily have, and that they cannot be permitted with impunity to indulge in conduct which they know, or ought to know, to be careless, because children are often reckless and mischievous.

If all this be true, however, and certainly it is as favorable a view of the • law for the defendant as our decisions admit of, and if we assume that the plaintiff was too young to go upon the street alone, and that his conduct was such that, if he had been alone, he could not recover, yet we cannot say, as matter of law, that there was no evidence for the jury that his sister, who had the charge of him, was not exercising the care over her brother which might reasonably be expected of a child of her age, although the weight of evidence is strongly against it. The jury must have found that she did not wilfully and deliberately expose her brother to the risk, but only that, when the danger became imminent, she did not act with that coolness, prudence, and self-control which might reasonably have been expected of an older person. Her conduct up to the time the danger became imminent, the rate of speed of the ear, its distance when she first saw it, and the other persons and objects in the street which might have influenced her conduct, are differently described by different witnesses. There is the same difficulty in this case which the court found in Mattey v. Whittier Machine Co., ubi supra.

All the facts which ought to be considered are not made sufficiently certain by the testimony to enable us to decide that there was any error of law in submitting the case to the jury. By the terms of the report, the

Verdict is to stand.