Mangam v. . Brooklyn R.R. Co.

The nonsuit granted at the Circuit can only be sustained upon the ground, that the evidence failed to show that the injury received by the plaintiff resulted from the negligence of the driver of the car, or that it showed the negligence of the plaintiff, or that of those having the care of him, and whose negligence was imputable to him, contributed to the injury received. Upon the first ground, no question is made by the counsel of the appellant. The negligence of the driver was clearly proved. It was his duty, while driving in the streets of Brooklyn, to keep entire control of his team as far as practicable; to be in a position to speedily apply the brake; and to be vigilant in observing the track, so as to enable him, as far as practicable, to avoid inflicting injury upon others. All of this was omitted by the driver, upon the occasion in question. Upon the latter ground there is more doubt. In Hartfield v.Roper (21 Wend. 615), it was held, that, when a child of such tender years as to be incapable of avoiding danger was permitted by his parents or guardians to be in the public streets, and then received an injury by being run over by a traveler who failed to discover him while standing or sitting in the traveled track, they *Page 457 could not recover unless the traveler was guilty of gross negligence, or inflicted the injury voluntarily. The principle of this case has been since its determination often applied by the courts of this State to analogous cases, and must now be regarded as the settled law, notwithstanding a somewhat different rule prevails in some of the other States. See Darley v. NorwichRailroad Co. (26 Conn. 591), and cases cited. This brings us to an inquiry as to the degree of care required from parents and guardians in keeping such a child from the street. The counsel for the defendant insists, that it must be such care as effectually to accomplish the object, and that any thing short of this is negligence. While, on the other hand, it is claimed by the plaintiff, that to constitute negligence in the parent or guardians, there must be an omission of such care as persons of ordinary prudence exercise and deem adequate for that purpose. The latter appears to be the conclusion required by the analogies of the law. Legal negligence is the omission of such care as persons of ordinary prudence exercise and deem adequate to the circumstances of the case. This definition, applied to the point in consideration, will exonerate the parents from the charge of negligence, if they used that degree of care. This conclusion is also supported by the reasoning in Hartfield v. Roper (supra). It is there said, that the law has placed infants in the hands of vigilant and generally affectionate keepers, their own parents, and if there be any legal responsibility for damages, it lies on them. Surely, an infant could not recover against his parent or guardian, for negligence in permitting him to escape into the street, unless he could show some omission of ordinary care to prevent it. The inquiry upon this point, then, is, whether the parents of the plaintiff were guilty of negligence, in permitting him to get into the street; for, if not, the nonsuit cannot be sustained upon that ground. The evidence shows, that he was not permitted to go, unattended, in the street; that he was lost sight of by his sister for only about twenty minutes; that his only means of access to the street was by climbing out of an open window, which only came within four feet of the floor. *Page 458 There was no evidence, that he had ever before got out of this window, or attempted to. I do not think that failing to guard this aperture, will warrant the conclusion, as matter of law, that the parent was guilty of negligence. At most, it should only have been submitted to the jury as a question of fact. The only remaining question is, whether the plaintiff himself was guilty of negligence contributing to the injury. This leads to an inquiry as to what degree of care is required of an infant four years old. In Daly v. Norwich R.R. Co. (supra), it was held, that negligence could not be imputed to a child of such tender years as to be wholly incapable of the exercise of care. In Robinson v. Cone (22 Vermont), it was held, that all that could be required of such a child, was the exercise of such care as it was capable of. In Lynch v. Murdin (41 Eng. Com. Law, 422), it was held, where the defendant's cartman had left his horse and cart standing unattended in the street for half an hour, and children gathered around it for play, and the plaintiff got into the cart, and, while getting out, another lad started the horse, thereby causing the plaintiff to fall, and the cart to run over him, breaking his leg, that the plaintiff could recover. It will be observed, that, in this case, the plaintiff (seven years old) had done a positive act (getting into the cart), in itself wrongful, and which had directly contributed to the injury, and which would most clearly have barred an action by an adult for a similar injury, yet the court held he had acted from childish instinct, and that this was not an impediment in the way of a recovery. These cases show, that a somewhat different rule, in determining the care to be exercised, is to be applied to infants, than is applicable to adults, when the inquiry is whether their negligence has contributed to an injury received; that, if there is no negligence in the parents or guardians in permitting the child to be in the street, and he has then received an injury from the negligence of another, he can maintain an action, unless he has omitted such care as might reasonably be expected from one of his capacity. Applying this rule to the conduct of the plaintiff, the evidence shows, that he was not guilty of the omission of any care that might have been *Page 459 expected from one of his years. After getting into the street, he ran along Tenth until he came to First, and then ran across the track ahead of the team, getting out of their way, but not out of the way of the dash-board of the car. He was too young to possess discretion to guard against that danger, and his not doing so is not, under the circumstances, to be regarded as negligence in him. The order appealed from must be affirmed, and judgment final, upon the stipulation, be given to the plaintiff.