Burke v. Broadway & Seventh Avenue Railroad

Leonard, P. J. An infant, when suing in his own behalf for injuries to his person arising from the negligence of others, must be free from the imputation of negligence on his part tending to produce the damages sought to be recovered. The rule is the same, whether the action be by an infant or an adult. We would not hesitate to hold an adult person,, who should rush from the sidewalk, when a street fail car was passing near, (within four feet of the curb stone, where the proper allowance is made for the projection of the car body beyond the railroad track,) and lying down upon a heap of sand, placed in the narrow space between the track and the curb stone, seeking to recover an article which had fallen from his hand upon such narrow space, to be guilty of inexcusable negligence. In reckless and childish haste the infant approached so near the car as to bump his head against it. It is no excuse that he did not see the car. It appears to be negligence not to have done so. Ordinary prudence would have prevented. Nor is it any excuse that the lad had less discretion than a man. He is required to exercise the prudence of a person of ordinary intelligence, before an action for damages arises for an injury to his person resulting partly from the carelessness of others. The lad was required to take the same care of himself as any other person. All are held accountable for a reasonable degree of prudence as to their [531] own safety. That reasonable care is the same, whether the rule be applied to a simpleton or a wise man. An injury received without reasonable prudence, on the part of the person injured, gives no right to recover amends in pecuniary damages. The father can recover only under the same circumstances of prudence as would be required if the action were on behalf of the boy. The negligence of the driver was, it is clear, a question for the jury, and it was properly submitted. The motion to dismiss the complaint should have been sustained upon the other ground. The call of Mrs. Webber was a warning to the child as well as to the driver of the car. It is difficult to understand from the evidence that the driver could have managed the car so as to have prevented the accident ; but I lay no weight upon this question, and am of opinion, under the decision in the case of Ernst v. The Hudson River Railroad Company, (32 How. Pr. 61, 88,) that the case on this point should have been left to the jury, had it not been beyond doubt that the negligence of the- boy contributed to produce the injury. The judgment should be reversed and a new trial granted, with costs to abide the event. Clerks, J. concurred.