Glickson v. Shannon , 88 Ill. App. 240 ( 1900 )

Mr. Justice Windes

delivered the opinion of the court.

When the evidence is conflicting and the case is close as to the right of recovery, it has been, repeatedly decided that the instructions to the jury should be accurate. Canevin v. R. R. Co., 72 Ill. App. 81, and cases there cited.

Whether or not the plaintiff was guilty of contributory negligence was a question of fact for the jury, and it was important that the jury in the determination of that fact should have been properly and accurately instructed. What would have been negligence on the part of an adult which would have precluded his recovery, does not necessarily constitute negligence on the part of a child of tender years, such as the plaintiff is shown to be, which would prevent a recovery. The negligence of a child is to be measured by his age, capacity and intelligence under the circumstances of the particular situation under consideration.

In Kerr v. Forgue, 54 Ill. 482, the court was asked to instruct the jury in the case of an injury to a boy twelve years old, that “ if the jury believe from the evidence that had the boy used ordinary care the injury complained of would not have happened, then, in that case, the law is for defendant,” but the court modified the instruction by inserting after the word “ care ” the following: “ that is, such care as a boy of his age and discretion would naturally use.” The Supreme Court held that the instruction as asked was not proper, and that the giving of it as modified was not error. The court say:

“A child can only exercise care and prudence equal to his capacity. Ordinary neglect as to a person of full age and capacity might be gross neglect as to a child. Hence the age and discretion of the child were the proper subjects of inquiry by the jury. The child is reckless and thoughtless; the man prudent and watchful.”

In C. & A. R. R. Co. v. Becker, 84 Ill. 483, which was an action to recover for injuries to a boy which resulted in his death, the court say :

“ While the deceased was possessed of ordinary intelligence and was capable of using as much caution for his safety as other boys of his age, yet it is not to be expected of a boy between six and seven years of age that the same caution and care will be used for personal safety as will be exercised by persons of mature age.”

To the same effect in principle are the cases of Ry. Co. v. Eininger, 114 Ill. 83, and City of Pekin v. McMahon, 154 Ill. 141-54, and Ry. Co. v. Ohlsson, 70 Ill. App. 487. The McMahon case reaffirms the Kerr case, supra, and the court say:

“ But where a child has passed the age of seven years, as was the case with appellee’s deceased intestate, we are of the opinion that he is bound to use such care as children of liis age, capacity and intelligence are capable of exercising, and that the question whether he has done so or no.t should be submitted to the jury.”

In view of the principle announced in the foregoing decisions, we are of opinion that the jury was not accurately instructed, under the evidence in the case, and that it should be submitted to another jury under instructions stating the law as above indicated.

Counsel for plaintiff in error in their briefs fail to cite any adjudication by the Supreme Court of Illinois on the question of the degree of care required of a child, and have thus imposed upon this court the labor which it has a right to expect should be performed by counsel.

Other contentions are made, which we deem it unnecessary to consider, among which is that it was error to use the word “ particulars ” in the second instruction, when the word “ opportunities ” was no doubt intended to be used.

This may be avoided on another trial.

The judgment is reversed and the cause remanded.