114 A. 81 | Conn. | 1921
We have very recently restated our rule as to the degree of care required of immature children, in the case of Lederer v. Connecticut Co.,
In this case the court instructed the jury in several slightly different forms. Twice it is said that the plaintiff was bound to use such care "as a reasonably prudent boy of his age" would have used under similar circumstances; once that he was bound to use such care "as a reasonably prudent boy of his age and experience would ordinarily use"; and again that he was bound to use the care which "an ordinarily prudent boy of his age and with his knowledge and experience would ordinarily use." After some deliberation the jury returned for further instructions on this issue, and the court than gave them the following test: "Did he fail to use his senses as a reasonably prudent person of his age and his intelligence and experience would do in the same circumstances."
The charge does not contain any reference to the element of judgment, discretion or self-control. It holds up to the jury as the standard of reasonably careful conduct for a child of tender years, that which might be expected of an ordinarily prudent person whose knowledge, intelligence and experience were more or less limited by reason of his immaturity; but it fails to make proper allowance for what was called, in the Brennan case, "the thoughtlessness of childhood," and in the *288 Lederer case, the predominant element of discretion and self-control. In this respect the charge was erroneous and harmful.
"Ordinary or reasonable care as applied to a young child means such care as may reasonably be expected of children of similar age, judgment and experience, under the circumstances." DiMaio v. Yolen BottlingWorks,
Upon the correlative issue of the degree of care which the motorman was bound to exercise in operating his car at a place where children were likely to be found in the street, the charge was also erroneous. It happens that the charge on this issue is practically identical with the charge in the Lederer case, and our reasons for sustaining the sixth, ninth, tenth and eleventh reasons of appeal are fully stated in that opinion.
There is error and a new trial is ordered.
In this opinion the other judges concurred.