50 Fla. 429 | Fla. | 1905
(after stating the facts.) The first three assignments of error involve the same question presented in different modes, viz: whether the supposed negligence
In the case of Lygo v. Newbold, Welsby, Hurstone & Gordon, (9 Exch.) 302, POLLOCK, C. B. says: “The case last put raises a doubt as to the authority of Lynch v. Nurdon, if it be applicable to the case where a child receives an injury from indulging in what is called the natural instincts of a child by getting up behind a gentleman’s carriage, there being no servant there.” And it is said by HOAR, J. in Wright v. Malden and Melrose Railroad Company, 4 Allen (Mass.) 283, that though questioned in Lygo v. Newbold, the case of Lynch v. Nurdin has generally been followed as an authority. For a discussion of the state of the English law on this question see Beach on Contributory Negligence, secs. 137, 138, 139. In the United States the courts are divided. What is known as the New York rule laid down in Hartfield v. Roper, 21 Wend. 614, established the doctrine that the negligence of the parent contributing to the injury of an infant of tender years, is imputed to the infant and
The fourth assignment of error is based on the refusal of the trial judge to give the following instruction to the jury at the request of the defendant, viz: “A child to the extent that he has knowledge and understanding of the -danger, or where the danger is of such a nature as to be obvious even to one of his years, is under a duty under the law to avoid the danger, and if on the track to get off and out of the way of the danger, or if near the track and the car is in plain sight, not to go upon the track in front of the car, and if you believe from the evidence in this case that Stanley Adams had knowledge and understanding of the danger, or the danger was of such a nature ■as to be obvious to one of his years, and the car was in plain sight, and he was on the track, and did not get off •and had time to get off, or was near the track and ran ■upon the same in front of the car, and so near the car as to make it impossible for the car to be stopped before
The remaining assignments of error are based on the overruling of a motion for a new trial. These can not be considered (by this court inasmuch as the bill of exceptions does not show any exception to the ruling of the court thereon. McDonald v. State, 46 Fla. 149, 35 South. Rep. 72; Parnell v. State, 47 Fla. 90, 36 South. Rep. 165, and cases cited; Dupuis v. Thompson, 16 Fla. 69, text, 73.
The judgment of the Circuit Court is affirmed.