77 Mich. 123 | Mich. | 1889
Lead Opinion
This action is brought by plaintiff for personal injury resulting in the death of plaintiff’s infant intestate.
From the record it appears that plaintiff’s intestate, an infant under the age of 15 years, while riding in a sleigh driven by a boy of the same - age, on the highway, was struck by defendant’s passing train, and killed, on a crossing. The testimony on the part of the plaintiff tended to show that no warning was given of the approach of the train, and that the view of the train was obstructed. Contributory negligence was urged by defendant on the part of plaintiff’s intestate-. The cause was tried before a jury in the Shiawassee circuit, and verdict and judgment were given for defendant. The plaintiff now asks for a review of the case.
The conflict in the testimony upon the subjects of obstructed view of the train, and want of proper signals, were settled against the plaintiff by the verdict. There remains, however, one question, made upon the charge, to be passed upon. It is in the record, and is presented sharply in the plaintiff’s brief.
Plaintiff’s counsel claim, and the charge shows, that the circuit judge held the boy who was killed to the same degree of diligence in his efforts to avoid the accident which overtook him as would be required of an adult with greater experience and more matured judgment. In no part of the charge is it intimated that any considerations which would be proper in the one case might not be in the other; and in this, it is insisted by counsel for plaintiff, there is error which was fatal to the defendant’s case. It is the claim of plaintiff’s counsel that the diligence to be used and required to enable a plaintiff to recover is such diligence as he is able to understand and have the capacity to use; and that it is
I have no doubt of the right of the plaintiff to have the instructions given to the jury he contends for in his position, and the duty of the court in that regard as his counsel claim it to be. And I think, both upon reason and the authority of this Court, the rule contended for by Judge Gold in his argument before us in this case is the correct one, and I believe it is safe to say that it is generally supported by the best-considered cases in this country-upon the subject. The rule is this:
“That the care and discretion to be used by children, and for which they must be held chargeable, must be*126 proportioned to their age and capacity; and, while it must be ordinary care, it is not the ordinary care required of an adult under the same circumstances.”
Mr. Justice Cooley, in speaking upon the subject of contributory negligence of a minor, says:
“ Duty can only be predicated of one who has capacity to understand, and ability to perform, it.”
In the case referred to, the injured boy was riding upon the platform of a street-car. Ho was but 4 years old, and was in charge of a brother, 13 years of age; and, in speaking of the alleged negligence of the brother, the learned Judge further said:
“ In judging of the measure of responsibility to which the older boy should be held, something more must be considered than merely his age. Some dangers the youngest persons shrink from instinctively, while an appreciation of others only comes from extended observation and experience. A child of four will shudder at the proximity of a precipice; when one of thirteen, to whose knowledge an injury from careless riding upon a streetcar has never come, will not anticipate danger from anything apparently so safe. It is within the observation of all travelers, and all persons having the management of railway trains, that boys of from eight to fourteen years of age are much more ready to place themselves in exposed positions upon cars, and to jump off and on recklessly, than are persons of mature years. It is not necessarily to be assumed that they purpose subjecting themselves to danger, but they lack the experience and observation which teach the danger, and without which a man in the full maturity of his intellect might be guilty of a recklessness equal to theirs. * * It would be unreasonable and cruel in the extreme to hold such a child responsible for a prudence and foresight beyond his years, and for a perception and comprehension of dangers which are only learned by experience, or by observation and reflection.” East Saginaw City Ry. Co. v. Bohn, 27 Mich. 503; Daniels v. Clegg, 28 Id. 32; Swoboda v. Ward, 40 Id. 420; Hassenyer v. Railroad Co., 48 Id. 205 (12 N. W. Rep. 155). See, also, Snow v. Provincetown, 120 Mass. 580; Kay v. Railroad Co., 65 Penn. St. 269; Plumley v. Birge,*127 124 Mass. 57; Lynch v. Smith, 104 Id. 52; Thurber v. Railroad Co., 60 N. Y. 326; Byrne v. Railroad Co., 83 Id. 620; Railroad Co. v. Murray, 71 Ill. 601; Hund v. Geier, 72 Id. 393; Railroad Co. v. Delaney, 82 Id. 198; McGovern v. Railroad Co., 67 N. Y. 417; Ewen v. Railway Co., 38 Wis. 613; Railroad Co. v. Gladmon, 15 Wall. 401; Birge v. Gardner, 50 Amer. Dec. 261; Kerr v. Forgue, 5 Amer. Rep. 146; Railroad Co. v. Stout, 17 Wall. 657. See, also, Freer v. Gameron, 55 Amer. Dec. 677, and cases cited in the note.
As is said by Mr. Justice Cooley in Hassenyer v. Railroad Co., supra, I think the law may be regarded as well settled in this State that, in determining the question of contributory negligence, not the same degree of caution is required of an infant, as in the case of an adult, and, when such negligence is sought to be charged against a lad of less than 15 years of age, the rule clearly applies; and the charge of the court is erroneously defective which fails to state the rule, and challenge the attention of the jury to it, in applying the law to the facts and cir_ cumstances such as are disclosed by the evidence in this case.
The circuit judge, in his charge, failed to do this, and it was error, for which I think the judgment should be reversed, and a new trial granted.
Dissenting Opinion
(dissenting). I do not agree that the charge of the circuit judge was open to the criticism expressed upon it by my brethren. It is not claimed he did not lay down the law correctly. It is claimed that he did not call the attention of the jury to the age of deceased as one of the elements in computing care or negligence. There are, no doubt, cases where peculiar knowledge is an element to be considered aside from ordinary sense and ordinary experience, and where the lack