179 A. 9 | Conn. | 1935
The plaintiff's decedent, his son Stephen, Jr., was killed by coming in contact with a bus of the defendant while crossing a street in Torrington. He was five and one-half years old, an active child in good health, and had attended school about three months up to the time of his death. The single assignment of error pertains to a portion of the charge, dealing with the question of contributory negligence of the plaintiff's decedent, as follows: "In weighing and measuring the conduct of this five and one-half year old boy to determine whether or not he was guilty of contributory negligence, you must use as a standard of due care that care which a reasonably prudent boy of the age of five and one-half years would exercise under the circumstances surrounding this boy. A child lacks the knowledge, experience and judgment of an adult. His conduct cannot be measured by that of a reasonably prudent adult. Did Stephen Marfyak, Jr., do or fail to do that which a reasonably prudent boy of the age of five and one-half years would not have done or would not have failed to do under the circumstances by which he was surrounded? If so, was such act a proximate cause of his death? The *48 defendant claims that the child ran heedlessly and recklessly into the side of the bus at a place between crosswalks where his presence could not be anticipated. The plaintiff claims that the child crossed the street as would any reasonably prudent child of the age of five and one-half years." Error is assigned in that thereby, it is claimed, the trial court "directed the jury to apply an objective, external standard of care to the conduct of the five and one-half year old decedent, although the proper standard is subjective and internal."
In determining whether or not an adult party was negligent, the standard to be applied by the trier is that of the ordinarily prudent man. Farrell v. WaterburyHorse R. Co.,
However, "the law . . . has regard for the immaturity of childhood, and does not require the same degree of care of a child as it does of an adult." Rutkowski
v. Connecticut Light Power Co.,
The specific criticism which the appellant, in its brief, makes of the charge is that the jury were "directed to consider only the conduct of reasonably prudent boys of that age and were not allowed to use for their guidance the intelligence, judgment, experience, knowledge and capacity of Stephen Marfyak, Jr., himself," the claim advanced being that the personal characteristics of the child himself, which the assignment of error denominates the "subjective and internal standard," instead of the "objective, external standard," which the charge is construed as utilizing, "furnishes the true test by which to judge the conduct of minors in this State." The foregoing discussion and citations demonstrate that the objective or "external" standard obtains here, as in most jurisdictions. The age, mental capacity and experience of the child immediately in question are to be taken into consideration — in a sense individualized and subjectively — but are so considered only for the purpose of enabling the jury to set up the standard, objective in its nature, *51 — a child "of similar age, judgment and experience" with which his conduct is to be compared and tested. 37 Yale Law Journal, p. 625. See, for example, charge in Lombardi v. Wallad, supra (Records Briefs, Vol. 248, p. 701). Therefore the instruction complained of, as construed by the appellant, affords no ground for the attack made upon it by the assignment of error.
In our view, however, that portion of the charge is open to criticism in another respect, not made ground of appeal. The standard stated was "that care which a reasonably prudent boy of the age of five and one-half years would exercise under circumstances" surrounding this boy. Age is only one of the elements to be considered, along with experience and judgment, the latter, involving discretion and power of self-control, being predominant. Lederer v. ConnecticutCo., supra, pp. 525, 526; Grenier v. Glastonbury,
There is no error.
In this opinion the other judges concurred.