| Mass. | Jan 15, 1870
The plaintiff’s declaration alleges that the defendant was driving a hack drawn by a pair of horses, in and . along Henly Street in Charlestown, by his servant, and carelessly ran over the plaintiff, (who was crossing the street arid using due care,) and injured him. The answer puts these allegations in issue.
It appeared in evidence that the plaintiff was a child four years and seven months old, and of the ability and intelligence. of the average of children attending the public schools of the age of five years, and was attending the common school. He was crossing the street on his way home from school when the accident happened. The plaintiff’s counsel requested the court to instruct the jury, that, the child being of the age and capacity stated above, his parents were not guilty of negligence in permitting him to go from his home to school alone, and to return alone, and in doing so to cross Henly Street at the time when and the place where he was run over by the defendant’s servant; and he excepts to the refusal of the judge to make this ruling. But the judge properly left this matter to the jury.
It is true that streets and highways are made for the use of all travellers, school children as well as others ; but in an action for damages by one traveller against another, brought on the ground that the plaintiff used due care, and that he was injured by the negligent conduct of the defendant, it must appear that he, or some one on his behalf, used due care, and that his own want of care did not contribute to the injury. Some of the cases on this point are referred to in Steele v. Burkhardt, post, 59.
The question, whether a child like the plaintiff is of such capacity that he may be safely trusted to go to and from school alone, is one of fact, and not of law. Its importance arises from the necessity that exists, in an action like this, to prove the due care that he alleges. In an action for a wilful assauff and battery in the street, it would be immaterial. But in an
If the jury find that the plaintiff was of such capacity that be was in the street without negligence, either on the part of himself or his parents, then the question arises what degree of care he was bound to exercise. In Mulligan v. Curtis, 100 Mass. 512" court="Mass." date_filed="1868-11-15" href="https://app.midpage.ai/document/mulligan-v-curtis-6415569?utm_source=webapp" opinion_id="6415569">100 Mass. 512, it was held to be a question for the jury, whether a boy three and a half years old might not without negligence be trusted to go across the street, accompanied by his brother nine years old. Certainly the jury could not find that a boy nine years old must exercise the capacity of an adult. But it was implied that, if it was proper for him to be there, it was only necessary for him to exercise such capacity as he had. School children who are properly sent to school unattended must use such reasonable care as school children can. It must be reasonable care adapted to the circumstances, or, in other words, he ordinary care of school children.
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
This principle was illustrated in Munn v. Reed, 4 Allen, 431. The plaintiff, a small child, was bitten by a dog. It is true that the liability of the owner was by statute. Gen. Sts. c. 88, §-59. But the question of negligence arose, and it was held that, if the mother of the child was not guilty of negligence in permitting the child to play with the dog, and if the child was bitten while using such care as is usual with children of its age, the action might be maintained. But this principle is inconsistent with the idea that the child must use the discretion of an adult. The instructions which were given to the jury in this case required a higher degree of care than the decided cases sanction ; and regard is also to be had to the question whether the negligence of the plaintiff contributed to the injury. If the negligence of the child contributed to his being in the way of the defendant’s horses, it contributed to the injury ; but negligence which had no such effect would be immaterial. Steele v. Burkhardt, post, 59.
First and second exceptions overruled; third exception sustained.