Lynch v. Smith , 104 Mass. 52 ( 1870 )

Chapman, C. J.

The plaintiff’s declaration alleges that the defendant was driving a hack drawn by a pair of horses, in and . along Henly Street in Charlestown, by his servant, and carelessly ran over the plaintiff, (who was crossing the street arid using due care,) and injured him. The answer puts these allegations in issue.

It appeared in evidence that the plaintiff was a child four years and seven months old, and of the ability and intelligence. of the average of children attending the public schools of the age of five years, and was attending the common school. He was crossing the street on his way home from school when the accident happened. The plaintiff’s counsel requested the court to instruct the jury, that, the child being of the age and capacity stated above, his parents were not guilty of negligence in permitting him to go from his home to school alone, and to return alone, and in doing so to cross Henly Street at the time when and the place where he was run over by the defendant’s servant; and he excepts to the refusal of the judge to make this ruling. But the judge properly left this matter to the jury.

It is true that streets and highways are made for the use of all travellers, school children as well as others ; but in an action for damages by one traveller against another, brought on the ground that the plaintiff used due care, and that he was injured by the negligent conduct of the defendant, it must appear that he, or some one on his behalf, used due care, and that his own want of care did not contribute to the injury. Some of the cases on this point are referred to in Steele v. Burkhardt, post, 59.

The question, whether a child like the plaintiff is of such capacity that he may be safely trusted to go to and from school alone, is one of fact, and not of law. Its importance arises from the necessity that exists, in an action like this, to prove the due care that he alleges. In an action for a wilful assauff and battery in the street, it would be immaterial. But in an action for negligence, either the plaintiff, or some one on his behalf, must use due care, so that his own negligence shall not have contributed directly to the injury. On this point, the testimony of the school-teacher, merely expressing her opinion of the capacity of the child, was properly excluded. Yet, in connection with a description of the child, an opinion of a person acquainted with him, and having had opportunity to observe him, as to his quickness of observation and comprehension, as compared with other persons, would be admissible. The statement of such an opinion, as to whether he was physically large or small, strong or weak, and quick or slow of movement, in comparison with others, would be according to every day’s practice; and when it related to the exhibition of mental qualities, it would be of the same species. There is a class of evidence of this character which necessarily involves the statement of opinion. We have had occasion to consider it recently in Commonwealth v. Dorsey, 103 Mass. 412.

If the jury find that the plaintiff was of such capacity that be was in the street without negligence, either on the part of himself or his parents, then the question arises what degree of care he was bound to exercise. In Mulligan v. Curtis, 100 Mass. 512, it was held to be a question for the jury, whether a boy three and a half years old might not without negligence be trusted to go across the street, accompanied by his brother nine years old. Certainly the jury could not find that a boy nine years old must exercise the capacity of an adult. But it was implied that, if it was proper for him to be there, it was only necessary for him to exercise such capacity as he had. School children who are properly sent to school unattended must use such reasonable care as school children can. It must be reasonable care adapted to the circumstances, or, in other words, he ordinary care of school children.

It does not necessarily follow, because a parent negligently suffers a child of tender age to cross a street, that therefore the child cannot recover. If the child, without being able to exercise any judgment in regard to the matter, yet does no act which prudence would forbid, and omits no act that prudence would dictate, there has been no negligence which was directly contributory to the injury. The negligence of the parent in such a case would be remote. But if the child has not acted as reasonable care adapted to the circumstances of the case would dictate, and the parent has also negligently suffered him to be there, both these facts concurring constitute negligence which directly and immediately contributes to the injury, for which the defendant ought not to be required to make compensation.

This principle was illustrated in Munn v. Reed, 4 Allen, 431. The plaintiff, a small child, was bitten by a dog. It is true that the liability of the owner was by statute. Gen. Sts. c. 88, §-59. But the question of negligence arose, and it was held that, if the mother of the child was not guilty of negligence in permitting the child to play with the dog, and if the child was bitten while using such care as is usual with children of its age, the action might be maintained. But this principle is inconsistent with the idea that the child must use the discretion of an adult. The instructions which were given to the jury in this case required a higher degree of care than the decided cases sanction ; and regard is also to be had to the question whether the negligence of the plaintiff contributed to the injury. If the negligence of the child contributed to his being in the way of the defendant’s horses, it contributed to the injury ; but negligence which had no such effect would be immaterial. Steele v. Burkhardt, post, 59.

First and second exceptions overruled; third exception sustained.