delivered the opinion of the Court.
Rеspondent H. E. Rogers for himself and as next friend of his eleven year old daughter, Venetia, brought this action against petitioner for the recovery of damages arising from injuries suffered by the child when she was struck by petitioner’s bus at a street intersection in the business district of the City of Dallas. Judgment was rendered for petitioner, the defendant in trial court, on account of the jury’s findings that the child was guilty of contributory negligence in failing to keep a prоper lookout and in failing to stop immediately prior to the impact. The Court of Civil Appeals reversed the trial court’s judgment and remanded the cause.
The bus, which had been driven east on Elm Street, had stopped at the intersection of Harwood street awaiting a green signal light before making a left turn to a passenger stop on Harwood street. Venetiа Rogers, who with several other girls had walked north across Elm street, paused at the corner to await the green signal light before going east across Harwood street. When the light changed the child started across Harwood street and collided with or was struck by the bus as it turned to the left into that street. The testimony showed that Venetia Rogers was an intelligent child, that her grades in school were satisfactory, that she had been given instructions in sаfety and had from time to time been in the business district with her parents and with other children and realized the danger of traffic and the necessity of being careful. No attempt was made to prove that she was not a normally intelligent child. .
The jury in answer to special issues found that the driver of the bus was negligent in failing to keep a proper lookout and in a failing to sound the horn, and that his negligence in each of these respects was a proximate 'cause of the collision. It also found that Venetia Rogers “failed to. keep a proper lookout for the defendant’s bus” as she entered the cross walk and “failed to keep a proper lookout for the bus immediately before the impact”, and that “the failure of Venetia Rogers to stop immediately prior to the impact was a failure to exercise ordinary care”. It further found that thе failure of Venetia Rogers in each of these respects proximately caused or proximately contributed to cause the accident.
The trial court, in its instructions preceding the special issues in the charge, defined “ordinary care” as “such care as a person of ordinary prudence would use under the same or similar circumstances”; defined “negligence” as “the failure to use ordinary care”; and dеfined “proper lookout” as “such lookout as a person of ordinary prudence would have kept under the same or similar circumstances”. This part of the charge,
Respondents made explicit objections to thesе definitions and instructions on the ground that they were not confined by the court to the issues relating to the conduct of the driver of the bus, but were directed and applied as well to the issues involving the conduct of the minor plaintiff, notwithstanding the fact that she was but eleven years of age, and that the effect of the defintions and instructions was to impose upon the child a greater degree of care than that required of her by law.
Respоndents also filed requests for definitions and instructions relating to the issues as to the child’s conduct. The substance of these is that by “negligence” as applied to the child is meant the doing of that which an ordinarily prudent person of the age, intelligence, experience and capacity of the child would not do, or the failure to do that which an ordinarily prudent person of the age, intelligence, experience and capacity of the child would do, under the same or similar circumstances; that “proper lookout” and “ordinary care” as used in the special issues applying to the child mean such lookout as would have been kept, and such care as would have been exercised, by an ordinarily prudent person of like age, intelligence, experience and capacity under the same or similar circumstances. The objеctions were overruled and the requests for special definitions and. instructions were rejected. The effect of the trial court’s charge and its refusal to give the instructions and definitions requested by respondents was that the court instructed the jury with reference to the issues of contributory negligence to measure the conduct of the minor respondent by the same standard as that applied to the conduct of an adult. This, as shown by thе authorities cited in the opinion of the Court of Civil Appeals, does not conform to the well settled applicable principle, which is that a child of tender years is not bound to exercise for its own safety the care required of an adult, the standard by which to measure the child’s cpnduct being that degree of care ordinarily exercised by children of the same age, intelligence, experience and capаcity under the same or similar circumstances. Houston & T. C. Ry. Co. v. Boozer,
Petitioner does not dispute the general rule, but takes the position that the trial court did not err in instructing the jury to measure the conduct of the child by the standard required of an adult, because in this case there is no evidence that the child was under any handicap in intelligence or understanding, the evidence on the contrary being that she was normal or above normal, for a child of her age, in intelligence, experience and understanding.
This position cannot be sustained. To sustain it would mean that the court must assume or presume that, in the absence of evidence of mental deficiency, an eleven year old child would ordinarily exercise the same care for its own safety that an ordinarily prudent adult would exercise. Such an assumption or presumption would violate the established rule that the adult standard of conduct is not required of a child, and it would be in contradiction of human experience. We know that a child of such immaturity as the minor respondent ordinarily does not exercise, and is not expected to exercise, for its own safety, the discretion and judgment of an adult. It seems necessarily to follow that the court’s chаrge, which in effect directs the jury in answering the issues relating to the child’s contributory negligence, to judge her conduct as it would judge that of an adult, deprives the child of the benefit of an established rule of law, and is reasonably calculated to induce the jury to find that she was negligent because an ordinary prudent adult would have been negligent had he, under the same circumstances, acted as did the child. When a standard is set up in the chargе, it should be the standard of the established rule, permitting the jury to measure the child’s conduct by that of the ordinarily prudent person of like age, experience, intelligence and capacity.
These conclusions are supported by the decisions, including those of this State. In Dr. Pepper Co. v. Rainboldt,
In Northern Texas Traction Co. v. Thetford, (Com. App.)
“Negligence is the failure to use ordinary care and negligence of a child is to be measured by the standard of care which an ordinarily prudent child of similar age would exercise. Ordinary care is that care which a person of ordinary prudence would exercise under the same or similar circumstances, and, as to a child, is such care which a child of ordinary prudence of that age would exercise.”
In holding that the charge was erroneous, Judge Harvey, who wrote the opinion, said:
“This charge is erroneous. In the respect that it deals with negligence on the part of a child, the charge bears directly on the special issue submitted to the jury which called for a finding as to whether or not Fred was guilty of negligence in riding on the running board of the automobile. The effect of the charge was to exclude from consideration the question, raised by the evidence, of Fred’s capacity to appreciate the dangers of said situation, for the standard of care set up in the charge is such degree of care as a child of ordinary prudence, of Fred’s age, would have exercised under the circumstance. Plainly this is not the law. In determining whether negligence is chargeable against a child who has passed beyond the age of irresponsibility, an inquiry as to the extent of his capacity to appreciate the dangers of the situation is of prime importance. The law requires that he exercise such degree of care as a person of his capacity would ordinarily exercise, under like circumstances.*624 The matter of age, though germane to the question of capacity, is not necessаrily of controlling force.”
The Court’s order rendering the judgment recommended by the Commission of Appeals contains the statement that “We approve the holdings of the Commission of Appeals on the questions discussed in its opinion”. The fair implication from the quoted holding approved by the Court is that the charge would . have been correct had it included the element of capacity as well as the element of age.
Houston & T. C. Ry. Co. v. Roberts,
The question raised and decided in Galveston Electric Company v. Antonini,
For other authorities supporting the decision of the Court of Civil Appeals, see: Cook v. Houston Direct Navigation Co.,
Petitioner relies upon and quotes from St. Louis Southwestern Railway Company v. Shiflet,
In the case before us contributory negligence is an issuе of fact to be decided by the jury. Venetia Rogers does not seek to be wholly relieved from admitted negligence by reason of want of discretion. She asks that in passing upon her alleged negligence the jury be permitted to measure her conduct by the standard applicable to a child rather than by that applicable to an adult. This difference between the Shiflet case and the ordinary case of contributory nеgligence on the part of the child, as is this case, is pointed out in Houston & T. C. Ry. Co. v. Roberts,
Petitioner relies also upon Seinsheimer v. Burkhart,
That decision goes no further than to hold that there is a rebuttable presumption that a sixteen year old boy has sufficient capacity and understanding to be sensible of danger and has the power to avoid it, and that accordingly the same standard may be used for measuring his conduct as is applied to an adult when there is no evidence tending to prove that he is wanting in discretion or mental capacity. The decision has no application
Evidence, as that in this case, that the child is unusually intelligent for her age and has been instructed and is experienced in the dangers of traffic, does not as a matter of law raise the child to the standard of an adult. She is still a child, and even though she may have greater knowledge than most other children of the same age, she is by nature and because of her extreme youth reckless and impulsive, so that what would be negligence on the part of an adult may well be excused on the part of such a child. These obvious facts the law recognizes in favoring the young child by prescribing a standard of conduct for him different from that prescribed for the adult. An interesting note in the Columbia Law Review thus explains the reason for this difference:
“This distinction arises consistently out of the whole doctrine of contributory negligence of children. Children being creatures of impulse, it is unfair to penalize infants who act like most of their kind for not acting like the minority, — the prudent children. If it be argued that children are relatively capable of restraint and moderation, the anwser is that at a tender age this relative ability amounts to practically nothing, and at a later age, it is taken care if by the rule that children must act in a way that is reasonably to be expected from one of their capacity and experience.” Columbia Law Review, Vol. XXI, pp. 697, 699.
In our opinion, respondents’ objections to the definitions and instructions as directed to the issues involving the minor resрondent’s conduct should have been sustained and the definitions and instructions relating to those issues and requested by respondents should have been given.
The judgment of the Court of Civil Appeals is affirmed.
Opinion delivered March 9, 1949.
Rehearing overruled April 6, 1949.