Tyler v. Weed

WEED. TYLER v. Negligence. Negligence Infants—Contributory — 1. injuries to recover for he against motorist action In minor’s * eight months of while cross years and six when sustained leaving school, way home from instruction his ing a street jury contributory negligence for was his question of intelligence age, and ability, consider his instructed also determining whether he conducted himself as in experience understanding reasonably ability would and his child of held, circumstances, expected to, like have been reversible error. Testimony Speed—Evidence—Opinion 14-

2. Automobiles — Boy. Old Year 14-year boy opinion testimony of old as to his as Exclusion injured held, car which speed of defendants’ witness testified he had observed the error where reversible in which had ridden could speedometers automobiles he going give ear was opinion how fast defendants’ observing experience automobiles driven on based his sufficiently qualified purpose streets, for the as he credibility testimony weight were for jury. Potter, J., dissenting. McAllister, JJ., dissenting part.

Bushnell Appeal (Blaine W.), from Calhoun; Hatch J. January (Docket 54, 1938. No. 6, Submitted Calen- Rehearing 39,704.) dar No. Decided 1938. June 1938. denied October by Tyler, friend, Case Edmund Dean his next Tyler, against Mattie and Burt Winifred N. Weed personal injuries T. Weed for sustained when struck crossing an automobile while at a street intersec- * Reporter. post, footnote, See 461.— Weed. judgment for defendants. Plain- tion. Verdict and appeals. tiff Reversed. Conroy (Allen counsel), & North,

Russell W. plaintiff. for

Joseph W. for defendants. McAuliffe, part). (dissenting in This is an J. McAllister, damages brought negligence, by action for an by September infant next suitor his friend. On just plaintiff, noon, before a child six eight returning was old, months school * walking his home in He Battle Creek. was in a west erly direction on the north side of street, Webber which intersects Meachem a north avenue, and south plaintiff street. came When he intersection stepped from the curb it is looked and, claimed, step took a or two and then looked north, south, running diagonally started across Meachem avenue northwesterly in a direction. driving

Defendant, woman old, was proceeding automobile on Meachem avenue in a northerly direction. She testified she that when glanced reached the intersection she to the sidewalk right, on the but saw no one on the corner; but she states that she when arrived the middle of in- plaintiff tersection she first saw two feet from the right. plain- curb on the Prom the time she first saw applied tiff until she her brakes, her car travelled approximately feet. was struck the left fender of defendant’s car after had run he northwesterly in a direction a distance 51 feet, passed and after he had the center line of the street * Birth certificate boy received in evidence showed birth of occurred January 18, 1929, years, eight on six days months and seven before accident.—Reporter. Michigan Reports. trying accident, a result of the

lie plaintiff to cross. As was injuries, permanent in-

suffered severe eye. cluding loss of an fractures and the jury The case was tried before resulted appeal plain- of action. a verdict of no cause On part of the trial court in tiff claims error on submitting jury of his contribu- tory negligence, he was seven because asks reversal on the court’s instruc- and also jury emergency tions to relative to acts done in required and the standard of care of the defendant. right incapable to claim that he Plaintiff’s challenged matter of is now law, as a ground counsel for on the that it made defendant, appeal; for the first and it time is submitted that in not raised the court claim, below, comes be- question fore us too late to save the for review. request Plaintiff’s counsel did not instructions to jury regard, plain- in this and the incapacity negligence tiff’s for as a matter of law indirectly, specifically, brought was but not to the attention of the trial on the court motion for a new appears. trial, as hereinafter formerly duty It is true it was the of counsel to call such error to the attention of the trial court. practice changed by Comp. But such was statute —3 (Stat. 27.1040). § Laws 1929, § Ann. In Totten Totten, 172 Mich. this court considering objection: said, a similar manifestly “If inadvertence, indicated to listening charge, those to the it would seem to be duty plaintiff’s counsel, rather than'defend- ant’s, the attention of call the court it. Under practice formerly prevailed, it have would duty been the of counsel for then defendant to take exceptions, thereby calling the attention of the court v. Weed. give opportunity to the matter and thus to make cor- latterly, rection; but for reasons which we do not legislature provided seek to fathom, that it is not necessary except charge given in such cases to to the jury, party deeming aggrieved but the himself by any portion charge may of the remain silent, subsequently, removing when the case to this court ’’ assign charge. for his errors review, assigned upon charge Error now be with- bringing out the matter to the attention of the trial' judge. Fangert, Goodman v. 204 Mich. 66.

right assignment to review an of error lost request subject because of failure to that the be cov- charge. ered in the Morain v. Tesch, Mich. 699. Defendant further contends that such claim of error is not included in the statement of reasons and grounds appeal for and therefore is not before this assign- court for consideration. Plaintiff’s fourth ment of error states: overruling plaintiff’s

“The court erred in motion assigned trial new for the reason in the second paragraph charging of said motion in as follows: “ ‘However, person violating any provisions of said is not respond liable to damages unless her regard in that proximate was canse of the accident and there was no con- tributory negligence on part party any asking to recover. you If ligence plaintiff negligent find the neg- manner and his aeeident, contributed to the then could not re- ” cover.’ assignment explicitly

While such did not claim holding plain- that the trial court erred in not that presumed tiff negligence to be free from as a matter it law, nevertheless set forth that the court charging jury plaintiff

erred in the that could negligent any recover if he were if such manner, negligence contributed to the accident. [Juno ground reversal which that believe

We sufficiently fairly sought, com- indicated is is assigned, plies rule, errors, with fairly precisely stated. if not indicated must be 151 Mich. America, Modern Woodmen Genrow question presented, of whether it raises the 250. So age being case, infant incapable conclusively presumed years, to be seven is negligence; erred in sub- the court and whether plain- negligence mitting of the infant such claimed question determined tiff jury. of fact to be proposition author- there On this is a conflict question anof ities between those that hold that the always aas infant’s is to be determined regardless and those of fact infant that an follow the common-law rule so-called conclusively pre- age under the of seven incapable negligence. sumed to phases, proposition, This has been its various before our court numerous occasions.

In Thornton Fair 229 Mich. Ass’n, v. Ionia Free contributory negli- involving alleged 1, a case gence boy of a the Court said: old, passed “Plaintiff had of tender child- protected negli- hood which is gence by presumption thrown its assumed around experience, recog- capacity lack of discretion and danger. general nize and understand im- rule putes capacity up that lack of seven years, prima applied and some courts it as a have presumption reached, until the of 14 is facie putting proof claiming the burden of on those con- ’’ tributory negligence. This rule in would seem to affirm the common-law our However, State. further Court said: 465 v. Weed. age Ex not the conclusive test. alone is “But capacity perience to he considered. As are also Railway (53 Co., 126 Mich. 73 in Trudell v. said was injured years 271), A. child was 7 L. R. where ‘Age 4 months is not the true test old, hoy, intelligence not his It is the cases. ’ By capacity ex that perience the tests of must control. younger 7 have been children contributory negligence than guilty of as a matter of law undisputed facts.” in this statement,

The Court latter which was obviously Hayes dicta, cross, referred to v. Nor (39 282). N. E. rule here Mass. 546 Such has never Michigan; tofore been followed and in the case then under consideration our the child was court, principle applied old and the to a child age under 7 was involved. Barger

In six Bissell, 188 Mich. a child injured years, days ten ten months and judgment in an automobile accident and received a against the defendant before driver, which came court for reversal on review. defendant asked ground showing, that there was no evidence having any tendency negligence part on show, contrary of the defendant and that the verdict was great weight re- the evidence. The court judgment ground versed the there was on the showing part no of the defend- passing ant. But in on the the court said: case, (the plaintiff) “It is manifest that she infant ex- ercised no care at all, and, if an she would adult, clearly recovery by be barred from her own careless- negligence; ness and but with a child of her question covery, contributory negligence precluding re- neg- in case the defendant is shown ligence, usually jury. an issue of fact for the In passing upon legal questions here, raised materiality suddenly coming of her in conduct thus upon the passing street close in front of a automo- bearing in the upon bile, middle of a is its block, ** * question negligence. of defendant’s Drivers upon highways against are not held as insurers ac- arising negligence cidents from or their children parents, though par- in law such in a may ticular case not be a defense, negligence, the guilty negligence, a driver also for. liability fact of an accident does establish ’’ presumption negligent. raise a that the driver is question again came before the court in Zylstra involving v. Graham, 244 Mich. child days six and three in who was killed old, judgment plaintiff automobile accident. A was appealed ground guilty on the that the child was contributory negligence as a matter of There law. satisfactory proof was no toas whether the child approaching had looked for an vehicle before cross- ing the street, or the defendant’s saw whether.he automobile before he was struck. The court said: boy enough “If justify pre- this was old sumption gave any that he the situation considera- presumed tion at all, it must be in the absence of tes- timony indicating any otherwise, that he assumed person operating regulate a motor vehicle would speed the rounding and control of his machine as the sur- * * * reasonably required. circumstances In judge boy, view of the tender of this the trial wholly justified, was the facts refusing case, to direct a verdict in favor of de- ground fendant on the that the deceased was contributory negligence.” While the court, in these did cases, not hold that plaintiff conclusively presumed the infant was incapable contributory negligence, neverthe- v. Weed. placed such no less burden negligence, clearly and it was freedom show alleged negligence of an in- asserted that while pleaded it nevertheless, not be as defense, fant bearing upon question of whether defend- had negligence. guilty of ant was turn- Medema,

Easton v. 246 Mich. marked a ing point involving question of our decisions contributory negligence plaintiffs. infant In that evenly disagreed upon case an divided court whether contributory negligence a child five eight jury, months old was a for the following: opinion Mr. Fead Justice his stated the “Regardless general principles governing weight care of children and the of au and conflict thority age as to the at which a child be charged contributory negligence (45 p. with C. J. 1002), it is settled law of this that a child State years age charged. under 6 of cannot be so Johnson City Bay City, v. (Ann. 164 Mich. 251 1912B, Cas. of 866), years, where the child was 5 4 old; months being Love v. years Co., Railroad 170 Mich. 1, child 5 age; and 5 months Beno Kloka, v. 211 Mich. years 116, where the child 5was and 11 months of plaintiff 3 months older than here, and his alleged negligence alleged was similar against to plaintiff.” Following supra, Easton v. Medema, it was held years that a child age four and three months of was young guilty too to be negligence, Valley Door v. Lumber Co., 254 Mich. 694; that an years infant three and one-half could not be guilty contributory negligence, Edgerton Lynch, v. years 255 Mich. 456; that a child five and eleven guilty months old could not be contributory negli- gence as a matter of law, Micks v. 256 Norton, Mich. v. 257 Mich. in Benedict Rinna, held and it was

308; plaintiff’s infant contribu that the 349, being only tory negligence he five involved, was not eight later' unanimous years old; and months Kenzie, 282 Mich. opinion in Guscinski held it was young years boy too old was five a contributory negligence. guilty of opinion in Easton v. Mr. Since Justice Fead’s supra, no mention has been Medema, there determining any other than court factor guilty years, capacity to be seven of a child under negligence. general question of an However, again Tobin, in Brinker v. arose infant’s girl involving 278 Mich. seven case seven months old. for the de had directed a verdict

The trial court guardian against on the of the child fendant ground particular matter of under the that as a law been of that the child had case, circumstances of appeal contributory negligence. trial court On opinion quoted with and the court in its affirmed, approval following Co., from Mollica v. Railroad involving 118), (L. 170 Mich. R. A. F, a case a child nine and months six old: “Where the an infant of such tender contributory negli- as to be without discretion, gence imputed gen- cannot be to him; such is the presumption age eral where the child is under the years. by It is also held some that age authorities presumption prima obtains, facie, until the of 14 capacity general is where is reached; but, shown, contributory negligence apply. rule of in will While ages the case of of 7 and 14 a child between years pre- allegation age might raise some sumption imputation tends remove the which neglect, mainly pleading; a matter of it is the' v. Weed. proven on the does not establish trial, when fact, that ’’ recovery. negligence essential freedom general presumption contributory If the is that negligence imputed to cannot be infants under age years repeatedly of seven as announced our general faced in court, we are this case with such a presumption. contributory negligence To hold that imputed can be to this infant violate is to apparently unquestioned the rule has been in up present argument this to the court time. is No general why advanced counsel defendant presumption should be set are to aside, unless we past argument overrule and no decisions; our has why given been ex- this case should be considered an ception general presumption.

In Kloka, 211 Beno v. Mich. said: court opinion “We are of that it was reversible jury any error for the trial court to in submit to the way plaintiff. negligence years age.” He was and 11 months of adjudications holding

From these cases we have incapable negligence that an infant is law age years, of six but can be past years if a matter of law seven' and seven age. argues months of Defendant, however, that supra, Mr. Justice Easton v. Medema, laid Fead down the rule six was the maximum determining to be considered whether infant an incapable negligence. do not We consider opinion express such a limitation but rather merely application to be of the common-law rule particular plaintiff happened in that case, where age. be under six

According following to authorities the common- arbitrarily law of seven rule, the fixed 285 470 incapable age of are which children

as the under negligence. opinion error was no that there “We of analogy giving in hold,

in and which instruction, the second exempts chil rule of the law, common age years re dren sponsibility, seven of from criminal up age years of that seven ‘a incapable child is of conduct such as will constitute contributory negligence, and that the court so ” Chicago City declare as a matter of law.’ R. Co. Tuohy, (63 v. Ill. 997, N. E. 58 L. R. A. 410, 270). years age “As was under of seven when injured, contributory negligence no part Chicago City Railway

her Hackett, is involved.”. Co. v. App. Ill. 594. City Spring Valley, In McDonald 285 Ill. 52 (120 1359), N. E. 2 A. L. R. the court said: “Prom time immemorial the of a status minor years recognized tender ent recognizes has been law be differ- years. one of more mature The law up age of seven a child incapable is conduct will con- constitute tributory negligence, uniformly and our courts have juries.” so stated the law their instructions to the subject In an extensive note on the in L. R. A. it is said: F, ground “There seems to be considerable for the position that as matter of law child under seven incapable negligence, especially any analogy because of criminal law that a child under that cannot commit a although frequently given, crime, this reason is but because, case of a child under seven lacking there is judgment, that discretion and appreciation and that probability and extent v. Weed. danger, are above, has shown been which, determining a child in whether elements the essential elements, ifAnd these exercised dne care. has proper merely knowledge, consideration receive not in age the determining at which of incapacity presumption of ceases of rule to be conclusive higher applicable, cases it seems that some adopted. age limit should It was said have been point in this was of the an Alabama the court case, * opinion that the doctrine of negligence years being only applicable was not to a child under seven age (the however, instance,

of child in this years old):

three and “It would one-half age seem to follow that a under the of seven child opera absolutely exempt from should be principle. Thought, judgment, tion discretion, legally imputable or will cannot be him—he can adjudged guilty punished not be for crime. * * * having an‘independent will,’—incapable Not choosing right wrong, between the and the be tween care and rashness, creature of instinct and impulse,—there ground negli is no on which to base gence. From him duties to others are not exacted, recognized compulsorily while duties to him are Negligence significance, enforced. has the same applied creating whether to a defendant as a cause or to a action, in bar of an action for a * * * injuries. age redress of A child below the years, irresponsible, incapable seven discretion, subjected liability negligence could as well be permit fully juris by imputation as to one sui escape responsibility of his own wrongful act. duty, The child him owes to no be incapable performing cause it.” transplanted This rule was from the civil law to early period. our common law at an In Austin’s Jurisprudence discussing author, conclusive presumptions of law, mentions the case of infants says: under the of seven * See Government Street R. Co. Hanlon, ^[53] Ala. 70.—Reporter. according (semble) to the Roman

“Here, Law, and juris according presumed own, to our the infant is et jure incapable culpable de of unlawful intention or incapacity pre- His inadvertence. is inferred proof sumed from the contrary wherein he is; pre-appointed inference not ad- is missible prudence, the tribunals.” Lectures on Juris- (5th 1929), p. John Austin Ed. 492. § In 4 Blackstone’s the law of Commentaries, 23, England subject on the stated as follows: years felony, seven of indeed,

“Under an infant can- guilty not be of for then a discre- felonious impossibility; eight tion is almost an but at may felony.” he old, be of a boy The author then mentions the case a where eight years burning old tried for was two barns and guilty, hanged according- was found condemned and ly. upon proceeding look We a as barbarous, cruelty and it find difficultto believe that such masquerade justice the accepted of law and could be century England. impressive the seventeenth The pitiless juris- fact, is that in however, such times of prudence, emphatic recognition there age age of seven was an of innocence, even though after the of seven, the child could be capital executed for a crime of he which would have previously. been blameless a twelve-month experience How well founded in the of countless philosophers and in centuries, the observation of antiquity understanding incapacity blamelessness of childhood is seen in modern was, thought outstanding and the researches scholars years; pertinent of recent it to remark consciously that our State follows, whether or not, capacity classic idea in matter of the v. Weed. According for education. statutes childhood compulsory providing of children, education for the arbitrarily established as seven time education commence. at which such must 15.566). Comp. (Stat. § §7526 Ann. Laws usually In do not seek cases on courts review, general guiding principles from authorities outside general the law. It is the rule that scientific works and books read in evidence on the trial cannot be although practice it States, is a of some case, by very respectable authority one sustained attorneys during argument jury, allow their proved to read from books which have been to be subject. upon standard Jones, works Law (3d Ed.), p. §580. of Evidence in Civil Cases contrary Michigan. People But the rule is to the (42 Rep. 477). Hall, Am. Mich. implications, This and its rule, should however, preclude reviewing taking cogniz- court from generally accepted ance of authorities, outstand- as ing reputable, toas conclusions reached result- ing from scientific observation and research, with object testing assumptions whether fact, relied in decisions of cited authorities self- presumably logic, evident, based on reason and and supporting justifiable. without are evidence, What is there in actual fact, science, research justify a different treatment of children under age the of seven passed from those that have age? impressed this One cannot fail to be with the fact crystallized these conclusions which cen- ago regarding special turies the status of child of by this present have day been confirmed ob- specialized servers and scientists in the field of child psychology. care, education and In recent the times, studies of Alfred. in Binet, France, Hans Gross, Michigan Reports. Piaget, and Maria Switzerland,

Austria, Jean brought light upon Italy, have a new Montessori, mysterious child, mind the and have elucidated of understanding many of of obscure areas in the infancy development growth in and mental and adolescence. at is remarkable in the conclusions arrived

What age of is the fact that the seven such research, line in the mental de- a transitional marks copious velopment In and rich of children. repeatedly subject, there literature devoted to the age marking emphasis upon recurs the as inception thought of and the commencement reason, exchange beginning concepts of of ideas, justice. that this marks the Authorities hold passage period speech from the of self-centered and thought understanding thought to verbal and social cooperation. and In short, seven can be said to be the threshold over a human being passes imagination from the realm of reality dream to the world fact. professor of law of the

Dr. Hans late Uni- Gross, judge Prague former and Vienna, versities pre-eminent examining Austria, courts of law magistrate Europe, Wigmore referred to Dean any the scholar done more other who has than encourage application man in modern times to judicial proof, says: of science to process growth in the “Because child is organs, development of its because the relations of are different and their functions these to each other actually being it is a different kind different, from the think adult. When we how different the body and actions of the child are, how different its differently foreign nourishment, how influences physical qualities affect and how different its it, are, v. Weed. is also com- his mental character see that we must pletely Psychology, A Manual Criminal different.” Judges, Gross, Hans Students, Practitioners and p. Boston, Series, Crime The Modern Science 1918. place point at the of view cannot ourselves

“We do, the same child; of the it uses indeed words we convey very to it different but these words ideas. things differently perceives the child Further, conceptions grown-up people. great magnitude, The pace beauty or or small, of and slow, —fast ugliness, quite of distance—near or different far, in the child’s from in more ours; still so brain, when * * * question. facts are in The of the horizon child being large much ours, narrower than number of perceptions our alone the child are outside the frame within which perceive. know, can within We cer But * * * tain limits, the extent of this frame. many point directions we do not know the exact faculty stops. where its of observation commences or explain At times we cannot how it does not under something stand while other, at other times we bearings easily are astonished to see it find its among thought beyond matters to be well its intelli gence.” Investigation, Criminal A Practical Text Magistrates, Lawyers, book for Police Officers and. p. Hans Gross, 1924.* London, judge according To a child to the standard and viewpoint unjust, from the of an adult is for the difference between the adult and the child is sought immaturity experience in child; nor does the child differ from the adult knowledge reason of its small outlook; narrow * also, Conception See The Causality; Child’s The Child’s Conception World; Language Thought The of the Child Piaget; Jean Development Intelligence, Binet Alfred Simon; Childhood, Th. The Secret of Maria Montessori; Hunt- ington Cairns, The Child Law, Generation, and the in the New (1930). being mentality

he ais with needs of his and a own adapted to his needs. bring .application

These considerations us to required plain- of the standard of care of the infant following tiff in forth as set in the in- case, jury: structions of the trial court to the charge you ordinary “I care has relation to parties, the situation and condition and varies exigencies according require vigilance contributory negligence and sought when attention, and only to child, be attributed to a child can degree be held to that of care which be reason ably expected from same one under the conditions intelligence judgment. and of the same I and sex, charge you by therefore that the care and discretion plaintiff to be used in this Edmund Dean case, Tyler, a child of six must months, and nine * proportionate capacity to his and to under ability perform passing stand and therefore in it, upon guilty of whether or not the contributory negligence you in this case testimony will consider all the thereto, with relation age, ability intelligence experience his and his recognize danger, and understand and determine whether or not he conducted himself as a child of his age, ability understanding reasonably would expected have been if he negligence. under like to, circumstances; guilty then

did, he would not be If, the other he failed to hand, use degree age, ability of care which a child of his understanding reasonably would have been ex pected to exercise under like then circumstances, he negligence negligence would be and if his regard in that contributed to the then accident, he would not be entitled recover.”

Much has been written about “the careful and prudent man” as the standard of care in cases in-

* ante, footnote, See 461.—Reporter. v. Weed. volving has often been and such standard logically and an indefensible unreliable, criticized originally evade unjustified to to resorted fiction jurisprudence. problems criticism, Whatever the it has at least the virtue merited, it be or whether objective attempt being at an standard. arrive when standard be said of the same This cannot applied the of In before to conduct infants. the case years plaintiff eight months of ns, was six and age. But the of down standard care was not laid * ordinarily prudent as that of the child careful and age. jury of order this was instructed that in such must infant conduct himself a recover, age, ability understanding child of his and would reasonably expected have been to act under like cir taking age, ability cumstances, into consideration Ms intelligence. and objective

This is of a confusion standard par- care, and the individual standard of care of any juryman judge ticular child. How can know prudent how a child tender should con- prudent himself, duct aside from the reflection of the adult mind what a child should do. Prudence and paradoxical contradictory. tender and How does one take into consideration the intelli- gence, ability understanding particular and of this proof child without intelligence, ability of what such understanding actually deceptive are? How logical trappings may be, is well illustrated in present case, where the record shows that the child was not any even a witness; and from available may present during indications, not even have been jury trial. obliged, Yet the was in the course its determination of these most issues, essential finding arrive at prudent, of what a careful child 461.—Reporter, ante, footnote, * See * eight years, months would six

at the infant circumstances, with do under the they then were confronted; and in this case intelligence, degree abil obliged to determine the understanding particular ity child this taking into considera whether, order ascertain qualities, the infant tion such individual prudent, acted would have careful child acted as a attempting on in front in coming to cross the street judge They further were

automobile. ability intelligence, particular infant’s what hearing understanding as a the child without were, seeing even without witness, been, and it have jury Any arrived at him. conclusion speculation piling such circumstances resulted Therefore, of a fiction. common- fiction boy interposed of this little law rule is in behalf suffering early blind childhood, the tender being injuries permanent him from ness and to save determination the victim of a fruitless and ritualistic rights. of his in this

The fact that the child was not a witness emphasizes, peculiarly, the another reason for case, rights. necessary protection infants’ rule so contributory proving from freedom The burden testimony would be almost his own baby- barely emerging insuperable for a child enough person for a mature hood. It is a severe test baby intelligence. It For a it is unthinkable. would be of seem that such a consideration would opposing especial party importance the where the wrongdoer the in- infant is mature who inflicts jury. jury might approach the determina- While attitude, it tion of in a fair-minded ^[*] See footnote, ante, 461. — Reporter. v. "Weed. testimony complex with be more concerned would exercise of caution— speed, time, distance, facts — to explain be drawn might inferences than with it on these enlighten inability points. the child’s the small and in child, is too for heavy The burden permit contest the law does such an unequal to take of the infant’s diffi- advantage wrongdoer culty inadequacy. has never on the court, however, ground

Our yet, of his own negligence, repudiated claim an infant under seven received injuries at hands a negligent it wrongdoer. On has af- contrary, repeatedly firmed on the recovery of such an even part infant, though, known the in- according every standard, fant would have been contributory negli- had court gence, given consideration in the to such defense. slightest degree To the Massachusetts rule in adopt this case, we would be reverse our decisions obliged dating more than a of a to Johnson quarter century back City, Bay supra. City of impressed

Nor are we with the argument rule common-law is unjustifiable because it is arbi There is no trary. unfairness from an arbitrary treatment of the matter when it is considered that the cause contributory negligence of the infant can come into consideration only after a determina tion that the defendant himself was negligent. For if defendant was not there negligent, can be no as- no recovery, one is liable for injuries resulting from the sudden and unexpected act of a child. Czarniski v. Security Storage & Co., Transfer 276; Mich. and if the defendant was negligent he Michigan Reports. 285

480 ground escape on the be not allowed should fully consequences who is aware an infant negligent. also acts, of his legal everywhere hedged by The citizen is about arbitrary qualifications upon and disabilities based age. age years rules of The law fixes the upon which infants contracts; are not liable their spite varying degrees intelligence and in capacity, prescribed qualifica-

the same is aas right tion for to vote. Infants can choose their guardians age. (3 own Comp. at Laws § [Stat. §27.2930]). 1929, 15765 Ann. at persons legal marriage can consummate is arbitrarily age qualification fixed law. The Congress years (U. election to 25is Const., S. art. [2]); § 2 (U. to the senate, 30 S. Const., art. [3]); § presidency, (U. Const., S. [5]). any §1 art. 2, If there is reason for arbi- trary age qualifications they disabilities law, certainly justification capable would be as when protection used in the of little children wrongs, any infliction of as in other situations above mentioned.

In such as cases the one before there in- us, questions legal volved of broad social, well as of import. In protection addition to the historic rights of children there further law, society obliged consideration that should not take itself the care and the rehabilitation of together injured recurring- such expense children, with the physical resultant from a child’s mis- which are bound in cases to fortunes, continue throughout injured person, lifetime be- permanent injuries. cause of nature of the If negligent causing the defendant has been these v. Weed. seeing public that the in injuries, interest has an the expense recompensed loss, for such infant be injuries, responsible rather by the for one the care public, expense borne the the entire than that eventually happens. This consideration often as so applies forcibly of tender in the case children more yet neces- unprepared effort toil and for the as sary of a than in the case livelihood, to secure person. mature * subject illuminating the in An article the capacity negligence is found of children in matters of years, author, in a in law review of recent discussing question, consideration says: the case us, before majority

“The arbitrary age of the States set an limit below which no infant can be held of con- tributory negligence. minority every The sends ease jury except undisputed where the facts.are and can Age only result in but one conclusion. is the by majority. fact minority considered The treat just many one of the facts to be considered jury settling particular that case before the court. preferable! “Which is view Under which view greater protec- infant accorded the amount of

tion! accepts majority “The writer view following majority reasons: The view is adminis- tratively expedient. possible danger of a shift- ing standard is avoided. The confusion and incon- sistency- jury which ofttimes mark decisions is crystallized eliminated. The law is and defined. The application majority of the simple. view is majority “The setting view in arbitrary age significance attaches full to the fact that infants as

* Contributory Negligence of Infants, Louis H. Wilderman,~ÍO Indiana p. Law Journal, (May, 1935), judgment comes discretion which lack class experience. have the infant While with injury possibility he runs

knowledge in front of a when moving trolley, contends the writer consequences, im- full he fails to consider the mediacy severity danger the conse- of the and the impulse. quences. if Seldom, on The infant acts stop full conse- ever, does the infant to consider may any quences crippled possibility he act. The appreciated. for life killed is not or even present All that desire. concerns the infant is his in Deliberation of alternatives and a sensible choice light consequences not the at- of future are years. tributes of of tender one minority give adequate pro- “The to view fails against youthful deficiency judgment in tection tendency jury and discretion. The of the in consider- ing importance the case before it to to the the is attach knowledge or not fact whether the infant had present danger. juror possibility of The im- is pressed the immediate facts and the infant’s with relation thereto and unless not, conduct clearly go beyond the court, instructed those facts brought juror his attention. The fails to consider whether or not infant would ability done what he did in this have case had he the impulsive temper judgment his action with the experience. and discretion which comes with public charge present of tomorrow demands protection. negligent placed “The injurious defendant operation. injured

force The infant as a re- sult defendant’s cog- acts. The courts -are nizant of the fully fact that the infant is not able to take care of himself and as a result has set a differ- ent standard of care for the infant than it has for agree the adult. If we that infants as a class are to leniency, why be treated with should we strive to negligent relieve a only defendant whose claim to be Weed. liability alleged from based on the fault absolved protect? group argu- seek to of that whom we This practically complications sound. The ment is crowding pre- modern civilization with its mium traffic and speed has the odds in lessened favor of safety Why any for these infants. decrease odds by favoring negligent further the who adult initiated

injurious knowledge capacity force with of its do harm?”

Every impels consideration further a court to de- questions involving termine little children standpoint by precedent, a humane unless restricted rights, justice opposite party, vested or be- public policy. cause of None of these considerations prevent application arise to of the humanitarian involving common-law rule cases children of years. tender

The rule contended defendant that the con- tributory negligence always ques- of the infant is regardless adopted of tion by fact of his has been Supreme Court of Massachusetts, and has come to be known as the rule.” “Massachusetts respect While we have the utmost for the distin- guished of tribunal we are con- commonwealth, to strained differ with it in our determination of this Among for several reasons. it these, uniformly be mentioned that directly we have held, contrary to the so-called Massachusetts rule, since supra, Easton v. Medema, and in numerous in- cases volving years, children of six have repeatedly incapable held that such infants were of contributory negligence as matter of a law. We ground have further found no advanced as a basis supported by for the rule experience, that is reason, public policy, regard pro- observation or or a for the rights tection of the of infants. On other matters Beports. 285 484 contributory question of closely with associated adopted in the rule negligence infants, of negligence imputing Massachusetts, charge to the of the child, of the care adult anof any preventing in such cases itself, child innocent negli by injuries recovery caused child (Brennan gent v. Co. Standard Oil defendant of Wright 472); (73 E. v. York, Mass. N. 187 376 New Railway 283), are not Allen we Co., [Mass.], 4 (23 City Mich. Owosso, Mullen v. accord. of City 436); Rep. Am. Boehm v. L. R. A. St. 693, of strong objection to it, 277. “The Mich. Detroit, 141 injustice palpable infant,” is its Bellefontaine (98 Snyder, 18 Ohio St. R. Indiana Co. & 175). Am. Dec. reasoning, because the nature of

Because of public policy the similar considerations rights protection rules infants’ involved in imputation adopted authorities as to the different negligence capacity infants, and their for con- tributory negligence, it of interest in a discussion is the common-law rule the Massa- as whether or Michigan, rule note chusetts be followed why grounds advanced we do follow Massachu- imputing setts on the rule parent plaintiff. to an infant Railway

In Schindler v. Co., 87 Mich. Chief spealdng subject: Champlin said in on this Justice principle justice “There is no demands person of one fault want care shall be imputed incapable who without another, fault or caring himself, and thus excuse the fault or negligence person injury causing of a to an innocent party. imputed negligence punishes doctrine * * * permits escape. the innocent and to guardians may negligent duty or Parents be of-their offspring or their but wards, toward this should not v. Weed. negligence excusing of others reason for be a towards unprotected and innocent children.” Humphreys, In Battishill 64 Mich. Justice said: Morse young contrary “The doctrine abandon would helpless, protect, to are hound and whom the courts parents always mercies of

to the not tender guardians, injury and wanton ill treatment * * * hope without guard of redress. The law aims and shield children tender parents strangers.” (Italics abuse as well as ours.) high of the fact It is somewhat illustrative sometimes overlook obvious authorities considera- logical apparent in devotion to form, tions Judge defending policy, that in Cooley the eminent public policy require the doctrine that and reason imputation such says child, an innocent (1st Ed.), page

in his work at Torts (note): likely guard

“It is more the interests of chil- opposite. dren and imbeciles than is the If a heart- parent may less suffer a child to take first his lessons walking city, in the crowded then, streets of a injured when he is probability or killed, as all he injury would the chargeable killing be, recover for such ground young that the child himself is too to be negligence, perhaps, with there will not, wanting depraved custodians of unre- children, by any humanity, willing strained considerations enough upon probable gains to count from such reck- less conduct.”

In Judge answer to this reason for such a rule, Humphreys, supra, Battishill v. said: Morse, argument predicated upon “But this must be rare exceptions general rule human conduct, and Michigan Reports. presupposes parents willing are to maim cases -where offspring from murder their avaricious motives. they such extreme and While wicked cases exist, enlightened age, in are, of in civilization, our very rare not and it will do found occurrence, policy upon of our law them.” adopting Caution is to be exercised in rules which logic, unsup are said to be based reason and ported by reflecting degree without evidence, on the judgment reasoning employed exercised and the arriving in ing at such A conclusions. recent case hold

that infants under the of seven chargeable contributory negligence, presum with ably upon logic, based reason and that modern states opportunities children of tender have more danger observe and be aware because of the influ by moving pictures, ence exercised them radio, and other modern inventions and conditions. Eck (264 hardt v. Hanson, 196 Minn. 270 N. 776,W. 1). opinion, A. L. R. But in our it said in cannot.be distinguished contrary view authorities who hold views this is matter of which a court can take judicial generally notice. Such statements are not accepted. say arbitrarily One cannot that the mental growth, intelligence, capability, judg awareness, age, ment of a modern child under seven developed are more because of such external stimuli. agreed development It is' not that the of the child mentality depends upon such considerations. As has authority, growth been stated one of the child progression mind orderly will be found to be a infancy maturity.* relation to It is said that it is because of his inherent of atten weakness young many that the tion, child falls into illusions * Infancy Growth, and. Human Arnold Gesell. Weed, Tvt/nr spite of children’s perception;* sense frequently they do widely, experiment

tendency to they come con objects with see common pointed to them and objects out unless such tact, outstanding noted.† characteristics most their regard conclusion a not draw scientists will Where ing except after insects, or the of mice, behavior a experiments over observations and thousands of period essay intel years, of some seems of it mysterious temerity the lectual know to to assume complex of operating upon mind and the factors bring intelli changing increased about infant, change gence, such behavior, when of awareness, and any evidence conclusions are arrived at without inven that modern whatever. We cannot assume growth the increase tions the of mind or advance years. is There of the of tender awareness, child development is much basis for the belief such early years directly dependent of upon age, in these growth. swiftly physical changes marked of This to authorities somewhat extensive reference pur- outside the for the law, is not made however, pose justify of and establishing a rule rather to but already confirm an us to seems rule that established only possess approval of times the of virtue past, upon humane also to but be founded reason larger es- of In burden considerations. sense tablishing seven the tenet under' infant, that an contributory negligence incapable of age, is is not cruelties those it. Above who assert carnage history aloft holds centuries, principle early civil In such blameless childhood. majority law, rule jurisprudence, criminal * Psychology (7th Ed.), Tracy. of Childhood Frederick † Psychology Ada Hart Infancy Early Ed.), (1st Childhood Arlitt. jurisdictions relating* neg- our State matters

ligence, incapacity of children aof certain recognized, whether it abe of intention long experience and the inadvertence; of human- ity recognized has in matters of morals, education, development, mental a definite of transition infancy from carefree that time a sense when responsibility principle is born. To surrender that depart one must past,— from sentiments not from an archaic rule—but a vital and con- recognition sidered of a transcendent element human paradox value. It hold indeed, a seems, incapable wrongful same child inten- an act of tion but responsible at the same time to hold him passive carefree inattention.

In our determination of this case we follow the by common-law rule announced numerous au the respect, thorities, entitled to eminent which hold that years an incapable infant under of seven is of contributory negligence. City Spring McDonald v. of Valley, supra; Noll Co., Sexton v. Construction 108 (95 129); Peyton, S. C. 516 S. E. Morris v. 148 Va. (139 500); 812 E.S. 122 Neb. Schneider, Siedlik v. (241 535); Herring, 763 W. N. Johnson v. 89 Mont. (300 535); City 420 Pac. 41 Cheek, v. Shawnee of (137 Okla. [N. S.] 227 L. R. A. Pac. 51 Tupman 290); Ann. 200 Schmidt, Cas. 1915 v. C, Ky. (254 Phillips, Flickinger 199); S. W. (267 101). Iowa, 837 N. W. recognized the

Such a at a time when doctrine by untempered harshness of law was the common away days equity, be frittered should not in these by metaphysical the the reflection, hazards of juries necessarily speculation of dubious protection cases.. of little This ancient-bulwark per- rights safeguard children is their a vital negligently sons. It cause warns that no one can v. Weed. impunity, injury of such tender with to a child casting burden by shoulders onerous on his small negligence. from proving freedom his own rights nurturing courts, our State,

In this require prescribe them novel will not infants, precedent condition as a care, standards reparation wrong- by injuries careless inflicted severe ob- them more not exact and will doers, prevailed middle in the ligations than of conduct re- ages. Michigan, rule the common-law In seven and children affirmed, incapable conclusively presumed of con- to be tributory negligence. in sub- of the trial court the action

It follows that mitting plaintiff’s infant jury fact, for determination

reversible error. speed sought de- at which

Plaintiffs to show driving accident, the time of the at fendant was age. Ballenger, boy This witness Max speedometers in he had observed testified that he he had ridden and that could in which automobiles give opinion as to how fast defendant was also experience observing ,in going, auto- based his he the streets. When was asked mobiles driven on speed opinion give of defendant’s his as to the court sustained accident, car at the time of objection on the made defendant’s counsel an ground qualified

that the witness had not been testify This was erroneous. to such fact. have been under these circumstances should

witness permitted sufficiently give opinion. He was weight qualified purpose; and credi- and the jury. bility testimony for the of such were appeal and discussed matters raised Other likely un- and are to arise on retrial counsel are not 285 490

necessary in the our decision view of to consider case. granted,

Judgment trial and new with reversed plaintiff. costs J., J. McAllister, concurred with

Bushnell, join holding I cannot in the C. J. Wiest, age, boy, years and seven cannot, six months * contributory any be circumstances, under negligence nor I matter of can fact, as a subscribe to the that: statement Michigan, “In reaffirmed, common-law rule is age children under of seven are con- clusively presumed incapable negligence.” to be

The common-law rule with reference to non- responsibility of children under seven ought by analogy, related to criminal acts and not, wholly lacking similarity, applied because negligence.

My adopts (Maskaliunas Brother the Illinois rule 23]), [149 Railroad 318Ill. 142 E. Co., N. of which it was said in Hanson, Eckhardt v. Minn. 270 196 (264 1): N. 776, W. A. L. R. being easy “This has the apply. rule merit of arbitrary always open it However, objection day’s that one difference in should not dividing

be capable line as to whether a child is negligence following not. Courts the Massa chusetts rule hold that of a child under seven is for jury proper instructions. Johnson v. Rail (106 road 682); Co., 93 Vt. Atl. Sullivan v. Rail way (78 382); Hayes Co., 192 Mass. 37 N. E. v. Nor (39 282); cross, Lacey, Mass. N. E. Hirrel v. (174 679); Railway 274 Mass. 431 N. E. Ritscher v. ^[*] See footnote, ante, 461.—Reporter. 491 v. Weed. (75 209) ; v. 462 Atl. Edwards Law, N. Co., 79 J. 832); (110 Railway Railway v. 504 N. Baker Co., 21 D. W. S. * * * 441). (75 249 Atl. Co., Law, 79 N. J. proper instruction the Massachusetts “Under likely is the more sound and most to rule insure public any the one just general upon result. and It does not cast may risks that created

all be go far carelessness of as it so a child. Still does degree not commen- to hold a child to a of care present- experience. surate with its Under and day permitted as- of is circumstances a child six opportu- many responsibilities. much sume There nity cognizant for him to thus become observe and for degree necessity exercising of care. some Compulsory and movies radio, the school attendance, effect. have this traffic all conditions tend Under most Illinois a child rule pre- flagrant duty not be still violation of and injuries recovering damages suf- cluded from fered chusetts rule partly The Massa- of such because violation. parties, justice contemplates for all irrespective age. office, of their Jurors, virtue competent judge not a child has whether degree with its care commensurate exercised a understanding. age, capacity, The Illinois rule logic. It is based reason or has no basis sound law of criminal rule historical outworn capacity any acknowledge on the which refused part any years to distin- seven child under guish right wrong.” between subject, Auto v. Smith Sales On see Vitale Mattey (144 380); v. Whittier Co., 101 Atl. 477 Vt. 575) (child (4 E. six N. Co., Machine Mass. 337 140 Levgar months); Rinaldi Structural seven 42) (boy (117 Atl. six ., Co Law, 97 N. J. age). System, Milbury 274 Mass. In v. Turner Centre 1070), (174 in R. E. 73 A. L. N. jured boy in- hit and was five crossing the street

.jured as he was an automobile city. in a negligence contributory

Upon question of of the boy, stated: the the court plaintiff the care failed to use “Whether experience for the age think, was, of his and we made one jury. that he was was No serious contention upon judgment the street. be alone to not of sufficient up Certainly to the care did not measure his conduct Chadwick, v. to of an adult. Sullivan be demanded (127 632). not E. The law does Mass. 130 N. 236 require of a He to use the care that it should. was bound boy age experience.” prudent his and Railway 222 Mass. 350 Co., Adams v. also, See, 165). (110 E. L. R. A. 1917 F, N. point

Upon at bar court, in the case this charged jury: ordinary charge you to

“I relation care has parties, varies and and the situation condition vigilance according exigencies require which negligence and sought and when attention, only to a the child can child, to be attributed degree may be to that of care be reason held ably expected from one under same conditions intelligence judgment. I and of the same and sex, charge you therefore the care and discretion plaintiff to be used Dean Edmund case, Tyler, a child of six and nine must months, * proportionate capacity be to his and to under ability perform passing stand and therefore in it, upon or not whether guilty contributory negligence you in this case will testimony consider all the with relation thereto, his age, ability intelligence experience and his recognize danger, and understand and determine * 461.—Reporter. footnote, ante, See Weed. as a child of himself he conducted not whether reasonably understanding ability age, would his expected circumstances; under like to, been have guilty of then he would not be con- if he did, tributory negligence. he failed hand, the other If, degree which a child of his use that care reasonably ability understanding have would expected circumstances, been like to exercise under negli- guilty he then would and if his gence regard in that contributed to the then accident, he would be entitled to recover.” upon pass are not called

We contributory negligence child be held a matter law. I find reversible error the exclusion of evidence judgment plaintiff. and the reversed, with costs Sharpe and Chandler, JJ., concurred Butzel, with Wiest, C. J. (dissenting). My J. views were stated in

Potter, They pre- Easton v. Medema, 246 Mich. 130. did not supported vail. The court announced a rule, neither by the canon the civil law, law, the common law, or intelligence experi- other law, excludes determining culpability disregards ence everyone degree rule is bound to use reasonably prudent care person which a age, of like intelligence experience ordinarily should use un- der like circumstances. A sense; rule that not years, intelligence; length not experience, life, govern responsibility should is un- for human action sound and should be discarded. J., did not sit.

North,

Case Details

Case Name: Tyler v. Weed

Court Name: Michigan Supreme Court

Date Published: Jun 30, 1938

Citation: 280 N.W. 827

Docket Number: Docket No. 54, Calendar No. 39,704.

Court Abbreviation: Mich.