McGuiness v. Butler

Morton, J. In order that a child may recover against one through whose negligence he claims to have been injured, it is not always sufficient for him to show that he himself was in the exercise of such care as might reasonably have been expected of him. His conduct, notwithstanding that fact, may have been that of a wrongdoer, and may have contributed to the injury of which he complains. When it clearly appears that such was the case, he cannot avoid the effect of his conduct by showing that he was doing only what a child might have been expected to do. An infant cannot shift any more than an adult the consequences of his own wrongdoing or negligence upon another. Whether he was negligent or a wrongdoer very often is a difficult question to determine, and it is hard to say in all cases where the line should be drawn between negligence or wrongdoing and such care as, considering his age and experience, reasonably should be expected of him. But about the general principle there can, we think, be no question. Thus, if a child trespass on the premises of the defendant, and is injured by something that he does while trespassing, he cannot recover, unless the injury was wan [237] tonly inflicted by, or was due to the recklessly careless conduct of the defendant. Gay v. Essex Electric Street Railway, post, 238, 242. Daniels v. New York & New England Railroad, 154 Mass. 349. McEachern v. Boston & Maine Railroad, 150 Mass. 515. So, if a child voluntarily participates in the wrongful acts of others, and is thereby injured, he cannot recover, though there in ay have been negligence on the part of the defendant which contributed to the injury. Lane v. Atlantic Works, 107 Mass. 104; S. C. 111 Mass. 136. Again, if a boy is injured while playing with a machine on which he has been set to work with proper, instructions, he cannot recover, because such conduct constitutes contributory negligence on his part. Rock v. Indian Orchard Mills, 142 Mass. 522. See also McAlpin v. Powell, 70 N. Y. 126. There is no suggestion in any of these cases that the plaintiff was entitled to recover if he was acting when he received the injury complained of as children of his age, intelligence, and experience naturally might be supposed to act under the same or similar circumstances. The principle for which the plaintiff contends would require us to hold that in no case would trespassing or intermeddling by a child, or participation by him in the act resulting in injury to him, be a bar, as matter of law, to his recovery, provided it appeared that the defendant was negligent, and that the child was only doing what he might naturally have been expected to do. We do not think that such is the law. We have assumed, for the purposes of this case, without deciding it, that the defendant was negligent in leaving the marble slabs where he did. The plaintiff concedes that there was also evidence tending to show that there was on the part of the plaintiff interference with them, growing out of the play in which he was engaged with the other boy. The court instructed the jury, that, if the plaintiff participated in throwing the stone over upon himself, he could not recover. The jury must have found that the plaintiff did assist in doing the thing which caused the injury to himself. We think that the ruling was right. Exceptions overruled.