Neal v. Gillett

Sanford, J. This is a motion for a new trial. In the first count of his declaration, the plaintiff alleges that the defendants threw a ball, with great force, near to the head of the plaintiff’s horse, and thereby frightened the horse, so that he ran, and caused the injury complained of. In the second count, the plaintiff avers that the defendants were playing ball, in the highway on which he was driving, and that they so carelessly and negligently so near to the head of the plaintiff’s horse frightened thereby, and ran, &e. The defendants pleaded the general is^i the plaintiff claimed that the defendafi gross negligence, and by it caused the ir The defendants denied that they were ¡ — 442 — genee, and contended that the injury was caused by the negligence of the plaintiff himself. The plaintiff claimed to recover only his actual damages, and it was admitted that two of the defendants were of the age of thirteen years, and one of them of the age of sixteen. 'The court charged the jury, that inasmuch as the plaintiff claimed to recover only his actual damages, the age of the defendants was not to be taken into the account, by the jury, in determining the question of negligence, and that if they should find the defendants guilty of gross negligence, as the cause of the injury, the plaintiff was entitled to recover, notwithstanding there had been, on his part, a want of mere ordinary care, which might have essentially contributed to produce the injury complained of. To the charge on both of these points, the defendants take exceptions. Upon the first point, a majority of the court are of opinion that the charge was right; though we do not intend to decide whether the distinction taken by the plaintiffs’ counsel in regard to the protection which infancy, or “ non-age,” affords, when claimed by a plaintiff, and when set up by a defendant, is well taken or not, and only remark, that we have been referred to no authority, which directly sanctions such distinction. We place our determination upon a different ground. The youngest of these defendants was thirteen years of age, and in the absence of all proof to the contrary, must be presumed to have been emancipated from the dominion of mere “childish instincts;” and we think it would be mischievous to hold that persons of the age of thirteen years are, on account of their youth alone, absolved from the obligation to exercise their rights with ordinary care. It may not be easy to fix upon the exact age when “ childish instinct,” and thoughtlessness, shall cease to be an excuse for conduct, which in an adult would be considered, and treated, as a want of ordinary care, but it is sufficient for the determination of this point, that these defendants had clearly passed that age. — 443 — The question, presented upon the second point, is, whether a plaintiff is entitled to recover for an injury, produced by the combined operation of his own want of “ ordinary care,” and the gross negligence of the defendant. The exact boundaries between the several degrees of care, and their correlative degrees of carelessness, or negligence, are not always clearly defined or easily pointed out. We think, however, that by' “ ordinary care,” is meant “ that degree of care which may rea} sonably be expected from a person in the party’s situation,’b (41 E. C. L. R., 425,) that is, “reasonable care,” (19 Conn. R., 572;) and that “gross negligence” imports not a malicious intention or design, to produce a particular injury, but a thoughtless disregard of consequences ; the absence, rathelV than the actual exercise, of volition with reference to results. What is the measure of “reasonable care” must of course depend upon the circumstances of the particular situation, in which the party at the time is placed. But “reasonable care” every one, in the enjoyment of his rights, and the per- ; formance of his duties, is bound to exercise, at all times, and under all circumstances. When he has done that, he is answerable to no one, for any consequences which ensue, for he has done all his duty; when he has done less than that, he is in fault, and if an injury ensue to another, in consequence of such fault, he is responsible for it: if to himself, he must bear it. If in the enjoyment of their lawful rights by two persons, at the same time and place, reasonable care is exercised by both, and an injury accrues to one of them, it must be borne by the suffering party as a providential visitation. If such care is exercised by neither party, and an injury accrues to one of them, he must bear it, for he was himself in fault. And we hold that when the gist of the, action is negligence merely,—whether gross or slight, the ■ plaintiff is not entitled to recover, when his own want of ' ordinary, or reasonable care, has essentially contributed to ! his injury; because he is himself in fault, and because of the ' difficulty, if not impossibility, of ascertaining in what proportions the parties respectively, by their negligence, have — 444 — contributed to the production of the injury, and whether it would have been produced at all, but by the combined operation of the negligence of both. When the injury is intentional, and designed, other considerations apply. For any thing this court can see, the negligence of the defendants, however gross, might have been entirely harmless, but for the plaintiff’s own wrongful contribution to the combined causes which produced his injury. And so too, for any thing this court can see, although the defendants’ negligence was gross, and fully adequate to the production r.of the injury, yet the plaintiff’s exercise of reasonable care 'Would have saved him from its consequences. In the recent case of Park v. O'Brien, 23 Conn. R., 339, this court said, “ It is necessary for the plaintiff to prove first, negligence on the part of the defendant, and, secondly, that the injury to the plaintiff occurred in consequence of that negligence. But in order to prove this latter point, the plaintiff must show that such injury was not caused, wholly, or in part, by his own negligence: for although the defendant was guilty of negligence, if the plaintiff’s negligence contributed essentially to the injury, it is obvious that it did not occur by reason of the defendant’s negligence.” “Hence, to say that the plaintiff must show the latter,” (the want of the plaintiff’s concurring negligence,) “is only saying that he must show that the injury was owing to the negligence of the defendant.” The same reasonable doctrine is sanctioned by other decisions, in our own court, and elsewhere. Birge v. Gardiner, 19 Conn. R., 507. Beers v. Housatonic R. R. Co., 19 Conn. R., 566, and cases there cited. We think therefore that the charge of the court, on this point, was wrong, and that a new trial ought to be granted. In this opinion the other judges concurred, except Ells-worth, J., who was disqualified. New trial to be granted,