Tyler v. Weed , 285 Mich. 460 ( 1938 )

I cannot join in the holding that a boy, six years and seven months of age,^* cannot, under any circumstances, be guilty of contributory negligence as a matter of fact, nor can I subscribe to the statement that:

"In Michigan, the common-law rule is reaffirmed, and children under the age of seven years are conclusively presumed to be incapable of negligence."

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

My Brother adopts the Illinois rule (Maskaliunas v. RailroadCo., 318 Ill. 142 [149 N.E. 23]), of which it was said inEckhardt v. Hanson, 196 Minn. 270 (264 N.W. 776, 107 A.L.R. 1):

"This rule has the merit of being easy to apply. However, it is arbitrary and always open to the objection that one day's difference in age should not be the dividing line as to whether a child is capable of negligence or not. Courts following the Massachusetts rule hold that the question of contributory negligence of a child under seven years of age is for the jury under proper instructions. Johnson v. Railroad Co., 93 Vt. 132 (106 A. 682); Sullivan v. Railway Co., 192 Mass. 37 (78 N.E. 382); Hayes v. Norcross, 162 Mass. 546 (39 N.E. 282); Hirrel v. Lacey, 274 Mass. 431 (174 N.E. 679); Ritscher v. Railway Co., 79 N.J. Law, 462 (75 A. 209); Edwards v. Railway Co.,21 S.D. 504 (110 N.W. 832); Baker v. Railway Co., 79 N.J. Law, 249 (75 A. 441). * * *

"Under a proper instruction the Massachusetts rule is the more sound and the one most likely to insure just result. It does not cast upon the general public any and all risks that may be created by the carelessness of a child. Still it does not go so far as to hold a child to a degree of care not commensurate with its age and experience. Under present-day circumstances a child of six is permitted to assume many responsibilities. There is much opportunity for him to observe and thus become cognizant of the necessity for exercising some degree of care. Compulsory school attendance, the radio, the movies and traffic conditions all tend to have this effect. Under the Illinois rule a child may be guilty of the most flagrant violation of duty and still not be precluded from recovering damages for injuries suffered partly because of such violation. The Massachusetts rule contemplates justice for all parties, irrespective of age. Jurors, by virtue of their office, are competent to judge whether or not a child has exercised a degree of care commensurate with its age, capacity, and understanding. The Illinois rule has no basis in sound reason or logic. It is based upon an outworn historical rule of criminal law which refused to acknowledge any capacity on the part of any child under seven years of age to distinguish between right and wrong."

On this subject, see Vitale v. Smith Auto Sales Co., 101 Vt. 477 (144 A. 380); Mattey v. Whittier Machine Co.,140 Mass. 337 (4 N.E. 575) (child six years and seven months); Rinaldi v.Levgar Structural Co., 97 N.J. Law, 162 (117 A. 42) (boy six years of age).

In Milbury v. Turner Centre System, 274 Mass. 358, 363 (174 N.E. 471, 73 A.L.R. 1070), the injured boy was five years of age, and was hit and injured by an automobile as he was crossing the street in a city.

Upon the question of contributory negligence of the boy, the court stated:

"Whether the plaintiff failed to use the care of one of his age and experience was, we think, for the jury. No serious contention was made that he was not of sufficient judgment to be alone upon the street. Certainly his conduct did not measure up to the care to be demanded of an adult. Sullivan v.Chadwick, 236 Mass. 130 (127 N.E. 632). The law does not require that it should. He was bound to use the care of a prudent boy of his age and experience."

See, also, Adams v. Railway Co., 222 Mass. 350 (110 N.E. 965, L.R.A. 1917 F, 165).

Upon this point the court, in the case at bar charged the jury:

"I charge you that ordinary care has relation to the situation and condition of the parties, and varies according to the exigencies which require vigilance and attention, and when contributory negligence is sought to be attributed to a child, the child can only be held to that degree of care which may be reasonably expected from one under the same conditions and of the same sex, intelligence and judgment. I therefore charge you that the care and discretion to be used by the plaintiff in this case, Edmund Dean Tyler, a child of six years and nine months,^* must be proportionate to his age and capacity to understand and ability to perform it, therefore in passing upon the question of whether or not the plaintiff was guilty of contributory negligence in this case you will consider all the testimony with relation thereto, his age, ability and intelligence and his experience to recognize and understand danger, and determine whether or not he conducted himself as a child of his age, ability and understanding would reasonably have been expected to, under like circumstances; and if he did, then he would not be guilty of contributory negligence. If, on the other hand, he failed to use that degree of care which a child of his age, ability and understanding would reasonably have been expected to exercise under like circumstances, then he would be guilty of negligence and if his negligence in that regard contributed to the accident, then he would not be entitled to recover."

We are not called upon to pass upon the age a child may be held guilty of contributory negligence as a matter of law.

I find reversible error in the exclusion of evidence and the judgment is reversed, with costs to plaintiff.

BUTZEL, SHARPE and CHANDLER, JJ., concurred with WIEST, C.J.

^* See footnote, ante, 461. — REPORTER.