INDEX

58. Metropolitan R. Co. v. Jackson, 3 App. Cas. 193; Hyman v. Nye, 6 Q. B. D. 685; Simkin v. London R. Co., 21 Q. B. D. 453; Smith v. Browne, 28 L. R. Ir. 1; Bizzell v. Booker, 16 Ark. 308; Western R. Co. v. Vaughan, 113 Ga. 354; Chicago R. Co. v. Scott, 42 Ill. 132; City v. Cook, 99 Ind. 10; Needham v. Louisville R. Co., 85 Ky. 423; Merrill v. Bassett, 97 Me. 501; Heinz v. Baltimore R. Co., 113 Md. 582; Chenery v. Fitchburg R. Co., 160 Mass. 211; Brick v. Bosworth, 162 Mass. 334; Keown v. St. Louis R. Co., 141 Mo. 86; Teepan v. Taylor, 141 Mo. App. 282; Brown v. Merrimack Bank, 67 N. H. 549; Nashville R. Co. v. Wade, 127 Tenn. 154; Coates v. Canaan, 51 Vt. 131; Fowler v. Baltimore R. Co., 18 W. Va. 579; Schrunk v. St. Joseph, 120 Wis. 223 Accord.

“We do not understand that an employer’s liability for the negligent act of his superintendent can be measured by the latter’s poise of temperament, nor that the character of a given act of the superintendent in respect of negligence can be made to depend upon his excitability or the reverse. It is the duty of a superintendent to do what an ordinarily careful and prudent man would do under the same circumstances, and the employer is liable if he fail to do this and injury results to an employe.” Bessemer Land Co. v. Campbell, 121 Ala. 50, 60.

Also it is erroneous to charge the jury that failure to exercise the care of “an ordinary man under like circumstances” or of “a person under similar circumstances” or “just such as one of you, similarly employed, would have exercised under like circumstances” amounts to negligence. Austin R. Co. v. Beatty, 73 Tex. 592; St. Louis R. Co. v. Finley, 79 Tex. 85; Louisville R. Co. v. Gower, 85 Tenn. 465.

59. “See Lambert v. Bessey, T. Raym. 422; Scott v. Shepherd, 3 Wils. 403. Probably an action of trespass might have been brought.” [Reporter’s note.]

60. Nitro-Glycerine Case, 15 Wall. 524; Thompson v. Chicago R. Co., 189 Fed. 723; Fort Smith Co. v. Slover, 58 Ark. 168; Richardson v. Kier, 34 Cal. 63; Nolan v. New York R. Co., 53 Conn. 461; Wolf Mfg. Co. v. Wilson, 152 Ill. 9; Cincinnati R. Co. v. Peters, 80 Ind. 168; Galloway v. Chicago R. Co., 87 Ia. 458; Schneider v. Little, 184 Mich. 315; Lauritsen v. Bridge Co., 87 Minn. 518; McGraw v. Chicago R. Co., 59 Neb. 397; Roberts v. Boston R. Co., 69 N. H. 354; Drake v. Mount, 33 N. J. Law, 441; Chicago R. Co. v. Watson, 36 Okl. 1; Ahern v. Oregon Co., 24 Or. 276; Houston R. Co. v. Alexander, 103 Tex. 594; Washington v. Baltimore R. Co., 17 W. Va. 190 Accord.

61. Sharp v. Powell, L. R. 7. C. P. 253; Pearson v. Cox, 2 C. P. D. 369; Gregg v. Illinois R. Co., 147 Ill. 550, 560; Missouri R. Co. v. Columbia, 65 Kan. 390, 400; Sutphen v. Hedden, 67 N. J. Law, 324; Crutchfield v. Richmond R. Co., 76 N. C. 320; Martin v. Highland Park Co., 128 N. C. 264; Simpson v. Southern R. Co., 154 N. C. 51; McCauley v. Logan, 152 Pa. St. 202; Bradley v. Lake Shore R. Co., 238 Pa. St. 315 (“only an extreme visionary would have imagined the consequences which followed or that injury could result to person or property therefrom”); Consumers Brewing Co. v. Doyle, 102 Va. 399; Lippert v. Brewing Co., 141 Wis. 453 Accord.

62. Only that part of the opinion which relates to this instruction is given.

63. “There is no absolute or intrinsic negligence; it is always relative to some circumstances of time, place, or person.” Bramwell, B., in Degg v. Midland R. Co., 1 Hurlst. & N. 773, 781. See also Bowen, L. J., in Thomas v. Quartermaine, 18 Q. B. D. 685, 694.

Bizzell v. Booker, 16 Ark. 308; Needham v. San Francisco R. Co., 37 Cal. 409; Diamond Iron Co. v. Giles, 7 Houst. 557; Atlantic R. Co. v. Moore, 8 Ga. App. 185; Chicago R. Co. v. Johnson, 103 Ill. 512; Parks v. Yost, 93 Kan. 334; Sheridan v. Baltimore R. Co., 101 Md. 50; Kelly v. Michigan R. Co., 65 Mich. 186; De Bolt v. Kansas City R. Co., 123 Mo. 496; Garland v. Boston R. Co., 76 N. H. 556; New Jersey Exp. Co. v. Nichols, 33 N. J. Law, 434; McGuire v. Spence, 91 N. Y. 303; Connell v. New York R. Co., 144 App. Div. 664; Anderson v. Atlantic R. Co., 161 N. C. 462; Elster v. Springfield, 49 Ohio St. 82; Frankford Co. v. Philadelphia R. Co., 54 Pa. St. 345; Virginia Power Co. v. Smith, 117 Va. 418; Morrison v. Power Co., 75 W. Va. 608; Davis v. Chicago R. Co., 58 Wis. 646 Accord.

Hence it is incorrect to define ordinary care as “such care as the ordinary person uses in the transaction of the ordinary affairs of life.” Hennesey v. Chicago R. Co., 99 Wis. 109.

64. Only part of the opinion is given.

65. Rosenthal v. Chicago R. Co., 255 Ill. 552; Indianapolis Traction Co. v. Crawley, 51 Ind. App. 357 (deaf man); O’Flaherty v. Union R. Co., 45 Mo. 70; Simms v. South Carolina R. Co., 27 S. C. 268. Accord.

66. Statement abridged. Part of opinion omitted.

67. The instruction which the court held should have been given in Winn v. Lowell was: “If the plaintiff was a person of poor sight, common prudence required of her greater care in walking upon the streets, and avoiding obstructions, than is required of persons of good sight.”

68. Compare Fenneman v. Holden, 75 Md. 1; Karl v. Juniata, 206 Pa. St. 633; Thompson v. Salt Lake Co., 16 Utah 281.

69. Statement abridged. Only so much of the opinion is given as relates to a single point.

70. Compare Wilson v. Brett, 11 M. & W. 113; Austin v. Manchester R. Co., 10 C. B. 454; Grill v. General Collier Co., L. R. 1 C. P. 600; Steamboat New World v. King, 16 How. 469; Purple v. Union R. Co., 114 Fed. 123; Oregon Co. v. Roe, 176 Fed. 715; Stringer v. Alabama R. Co., 99 Ala. 397; Louisville R. Co. v. Shanks, 94 Ind. 598; Denny v. Chicago R. Co., 150 Ia. 460; Raymond v. Portland R. Co., 100 Me. 529; McPheeters v. Hannibal R. Co., 45 Mo. 22; Reed v. Telegraph Co., 135 Mo. 661; Village v. Holliday, 50 Neb. 229; Perkins v. New York R. Co., 24 N. Y. 196; McAdoo v. Richmond R. Co., 105 N. C. 140; Fitzgerald v. Grand Trunk R. Co., 4 Ont. App. 601 Accord.

In Wilson v. Brett, supra, Rolfe, B., said: “I could see no difference between negligence and gross negligence—... it was the same thing with the addition of a vituperative epithet.”

71. Maryland R. Co. v. Tucker, 115 Md. 43; Cates v. Hall, 171 N. C. 360; Lundy v. Southern Tel. Co., 90 S. C. 25 Accord.

See various forms of stating this general doctrine in 2 Hutchinson on Carriers, (3d. ed.) §§ 895, 896; 4 Elliott on Railroads (1st ed.) § 1585; 1 Shearman & Redfield on Negligence (6th ed.) § 51.

In Wharton on Negligence (1st ed.) §§ 636, 637, the author says that the diligence should be “that which a good carrier of the particular grade is accustomed to exert;” i. e., “the diligence and skill which a good business man in his specialty is accustomed to use under similar circumstances.”

For a criticism of Wharton’s statement, see 1 S. & R. Negl. (6th ed.) §§ 43–50. And compare 2 Hutchinson on Carriers (3d ed.) § 897, note 13.

“It is reasonable care under the existing circumstances that one person has the right to require of another; and that degree of care becomes increased with any increase of the apparent danger involved in its absence or with the increased power of control of one of the parties whose conduct is in question.... A common carrier of passengers either by rail or by water has so complete a control and the consequences of negligence on his part may be so serious that he is justly held to a very high degree of care for their safety; and accordingly it has been often said, both in this and in other jurisdictions, that he is held to the exercise of the highest degree of care. But as was pointed out in Dodge v. Boston & Bangor Steamship Co., 148 Mass. 207, 217, 218, this phrase and similar words which have been used to convey the same idea mean simply that the carrier is bound to use the utmost care consistent with the nature of his undertaking and with a due regard for all other matters that ought to be considered in conducting the business. This conductor was not bound absolutely to exercise the highest degree of care in running his car, but only the highest degree of care which was consistent with the practical performance of all his duties in seeing that the car was run safely without unreasonable delays, and so as to provide for the safety and convenience and properly rapid transit of his passengers. What was required of him was the highest degree of care consistent with the practical management and operation of his car for the carriage of passengers, ‘or in other words, the requirement [was] reasonable care according to the nature of the contract’ with the passengers.” Sheldon, J., in Gardner v. Boston R. Co., 204 Mass. 213, 216. Compare Campbell, J., in Michigan R. Co. v. Coleman, 28 Mich. 440, 449.

72. Only so much of the case is given as relates to a single point.

73. “Due care,” “reasonable care,” and “ordinary care” are synonymous terms. Neal v. Gillett, 23 Conn. 437; Baltimore R. Co. v. Faith, 175 Ill. 58; Raymond v. Portland R. Co., 100 Me. 529; Durant v. Palmer, 29 N. J. Law, 544.

74. “But it would savor too much of refinement to hold that there is any practical inaccuracy in saying that one driving a high-powered automobile must exercise a greater care toward others on a state highway than one plodding along a country road with an ox team.” Rugg, C. J., in Com. v. Horsfall, 213 Mass. 232, 235.

75. “The rule, that due diligence is such attention and effort applied to a given case as the ordinary prudent man would put forth under the same circumstances, seems to meet the demands of every conceivable case.... The ratio of diligence to circumstances being thus fixed, the two extremes may change to an infinite extent without destroying the ratio, and without giving rise to what we term negligence. The bailee who undertakes the carriage of stone for the paving of a street is held to the rule that he must use such attention and effort as the ordinary prudent man would use under like circumstances.”

“The bailee, who undertakes to repair a delicate watch, is held to the rule that he must use such attention and effort as the ordinary prudent man would use under the same circumstances. The contract of the watchmaker is the same, relatively, as that of the hod-carrier. Each contracts to provide the reasonable ordinary skill and attention which a man in his position would exercise under like circumstances. The ratio, proportion, or correspondence of diligence to circumstances, of care to surroundings, is fixed and identical. And in determining a question of diligence or negligence in either case, it would be only necessary to apply the same rule to varying circumstances and persons, to demand the same ratio between varying extremes. And it is not too much to assert that all the perplexity and misunderstanding on the subject of diligence and negligence are due to the habit of confounding the specific acts and circumstances, which must always vary, with the ratio or relation between them, which remains always the same. It is true that there may be different ratios of effort and attention to the circumstances and to the results desired. A man may contract to furnish the highest skill, the most perfect means and appliances, the most assiduous attention in the accomplishment of a specific end. But, when an individual so contracts, there is the element of special or positive intention introduced, which takes the case out of the category of diligence, and renders such a contract a special and extraordinary one. The law never requires such a special, positive intention....” 6 Albany Law Journ. 313, 314.

76. Arguments omitted.

77. A fuller statement of the views of the learned judge may be found in the extracts, which follow, from his work on Bailments:

“Section 11. [On the subject of the various degrees of care or diligence which are recognized in the common law.]... There may be a high degree of diligence, a common degree of diligence, and a slight degree of diligence;...”

“Common or ordinary diligence is that degree of diligence which men in general exact in respect to their own concerns.... That may be said to be common or ordinary diligence, in the sense of the law, which men of common prudence generally exercise about their own affairs in the age and country in which they live.”

“Section 16. Having thus ascertained the nature of ordinary diligence, we may now be prepared to decide upon the other two degrees. High or great diligence is of course extraordinary diligence, or that which very prudent persons take of their own concerns; and low or slight diligence is that which persons of less than common prudence, or indeed of any prudence at all, take of their own concerns. Sir William Jones considers the latter to be the exercise of such diligence as a man of common sense, however inattentive, takes of his own concerns. Perhaps this is expressing the measure a little too loosely; for a man may possess common sense, nay, uncommon sense, and yet be so grossly inattentive to his own concerns as to deserve the appellation of having no prudence at all. The measure is rather to be drawn from the diligence which men, habitually careless or of little prudence (not ‘however inattentive’ they may be), generally take in their own concerns.”

“Section 17. Having, then, arrived at the three degrees of diligence, we are naturally led to those of negligence, which correspond thereto; for negligence may be ordinary, or less than ordinary, or more than ordinary. Ordinary negligence may be defined to be the want of ordinary diligence, and slight negligence to be the want of great diligence, and gross negligence to be the want of slight diligence. For he who is only less diligent than very careful men cannot be said to be more than slightly inattentive; he who omits ordinary care is a little more negligent than men ordinarily are; and he who omits even slight diligence fails in the lowest degree of prudence, and is deemed grossly negligent....” Story on Bailments (8th ed.), §§ 11, 16, 17.

See also Redington v. Pacific Co., 107 Cal. 317, 323–324; Belt Line R. Co. v. Banicki, 102 Ill. App. 642; Union R. Co. v. Henry, 36 Kan. 565; French v. Buffalo R. Co., 2 Abb. Dec. 196, 200–201, 4 Keyes 108, 113–114; Cederson v. Navigation Co., 38 Or. 343; Lockwood v. Belle City R. Co., 92 Wis. 97, 111–113; Astin v. Chicago R. Co., 143 Wis. 477.

“The theory that there are three degrees of negligence described by the terms slight, ordinary, and gross, has been introduced into the common law from some of the commentators on the Roman law. It may be doubted if these terms can be usefully applied in practice. Their meaning is not fixed, or capable of being so. One degree, thus described, not only may be confounded with another, but it is quite impracticable exactly to distinguish them. Their signification necessarily varies according to circumstances, to whose influence the courts have been forced to yield, until there are so many real exceptions that the rules themselves can scarcely be said to have a general operation. In Storer v. Gowen, 18 Maine, 177, the Supreme Court of Maine says: ‘How much care will, in a given case, relieve a party from the imputation of gross negligence, or what omission will amount to the charge, is necessarily a question of fact, depending on a great variety of circumstances which the law cannot exactly define.’ Mr. Justice Story, Bailments, § 11, says: ‘Indeed, what is common or ordinary diligence is more a matter of fact than of law.’ If the law furnishes no definition of the terms gross negligence, or ordinary negligence, which can be applied in practice, but leaves it to the jury to determine, in each case, what the duty was, and what omissions amount to a breach of it, it would seem that imperfect and confessedly unsuccessful attempts to define that duty had better be abandoned.

“Recently, the judges of several courts have expressed their disapprobation of these attempts to fix the degrees of diligence by legal definitions, and have complained of the impracticability of applying them. Wilson v. Brett, 11 Meeson and Wels. 113; Wyld v. Pickford, 8 ibid. 443, 461, 462; Hinton v. Dibbin, 2 Q. B. 646, 651. It must be confessed that the difficulty in defining gross negligence, which is apparent in perusing such cases as Tracy et al. v. Wood, 3 Mason 132, and Foster v. The Essex Bank, 17 Mass. 479, would alone be sufficient to justify these complaints. It may be added that some of the ablest commentators on the Roman law, and on the civil code of France have wholly repudiated this theory of three degrees of diligence, as unfounded in principles of natural justice, useless in practice, and presenting inextricable embarrassments and difficulties. See Toullier’s Droit Civil, 6th vol., p. 239, etc.; 11th vol., p. 203, etc.; Makeldey, Man. Du Droit Romain, 191.” Curtis, J., in Steamboat v. King, 16 How. 469, 474 (injury to gratuitous passenger).

“Confusion has arisen from regarding negligence as a positive instead of a negative word. It is really the absence of such care as it was the duty of the defendant to use. A bailee is only bound to use the ordinary care of a man, and so the absence of it is called gross negligence. A person who undertakes to do some work for reward to an article must exercise the care of a skilled workman, and the absence of such care in him is negligence. Gross, therefore, is a word of description, and not a definition; and it would have been only introducing a source of confusion to use the expression gross negligence, instead of the equivalent, a want of due care and skill in navigating the vessel, which was again and again used by the Lord Chief Justice in his summing up.” Willes, J., in Grill v. General Collier Co., L. R. 1 C. P. 600.

As to the standard for physicians, see McNevins v. Lowe, 40 Ill. 209; Small v. Howard, 128 Mass. 131; Luka v. Lowrie, 171 Mich. 122; Booth v. Andrus, 91 Neb. 810; McCandless v. McWha, 22 Pa. St. 261.

78. Statement rewritten. Only part of case is given.

79. The word gross was struck out by chap. 375, Acts of 1907, § 1.

80. Compare Martin v. Boston R. Co., 205 Mass. 16; Devine v. New York R. Co., 205 Mass. 416.

81. For other cases of statutory degrees of negligence, see Seaboard R. Co. v. Cauthen, 115 Ga. 422; Louisville R. Co. v. Long, 94 Ky. 410; Western Tel. Co. v. Reeves, 34 Okl. 468; Davis v. Railroad Co., 63 S. C. 370. That the wanton and reckless disregard of consequences which makes a defendant liable at common law to a plaintiff not in the exercise of due care is something more than negligence gross in degree, see Birmingham R. Co. v. Pinckard, 124 Ala. 372; Denman v. Johnston, 85 Mich. 387; Banks v. Braman, 188 Mass. 367; Southern Mfg. Co. v. Bradley, 52 Tex. 587; Barlow v. Foster, 149 Wis. 613.

82. Statement of facts abridged. Only so much of the case is given as relates to one point. Arguments omitted.

83. E. g., Neal v. Gillett, 23 Conn. 437 (child of 13; charge that age was not to be taken into account upheld). This is universally rejected. Lynch v. Nurdin, 1 Q. B. 29; Washington R. Co. v. Gladmon, 15 Wall. 401; Government R. Co. v. Hanlon, 53 Ala. 70; Chicago R. Co. v. Murray, 71 Ill. 601; Indianapolis R. Co. v. Wilson, 134 Ind. 95; McMillan v. Burlington R. Co., 46 Ia. 231; Kansas R. Co. v. Whipple, 39 Kan. 531; Lynch v. Smith, 104 Mass. 52; Huff v. Ames, 16 Neb. 139; Swift v. Staten Island R. Co., 123 N. Y. 645; Pennsylvania R. Co. v. Kelly, 31 Pa. St. 372; Queen v. Dayton Coal Co., 95 Tenn. 458; Cook v. Houston Navigation Co., 76 Tex. 353; Roth v. Union Depot Co., 13 Wash. 525.

84. Smith v. Pittsburgh R. Co., 90 Fed. 783; Warble v. Sulzberger, 185 Ala. 603; Denver Tramway Co. v. Nicholas, 35 Col. 462; Rohloff v. Fair Haven R. Co., 76 Conn. 689; Goldstein v. People’s R. Co., 5 Pennewill, 306; Elwood R. Co. v. Ross, 26 Ind. App. 258; Wyman v. Berry, 106 Me. 43; Munn v. Reed, 4 All. 431; Rasmussen v. Whipple, 211 Mass. 546 (but see Angelary v. Springfield R. Co., 213 Mass. 110); Lucarelli v. Boston R. Co., 213 Mass. 454; Strudgeon v. Village, 107 Mich. 496; Consolidated Traction Co. v. Scott, 58 N. J. Law, 682; Swift v. Staten Island R. Co., 123 N. Y. 645; Laferty v. Third Ave. R. Co., 176 N. Y. 594; Lake Erie R. Co. v. Mackey, 53 Ohio St. 370; Box & Label Co. v. Caine, 11 Ohio Cir. Ct. R. N. S. 81 (Aff’d 78 Ohio St. 405); Dubiver v. City R. Co., 44 Or. 227; Rachmel v. Clark, 205 Pa. St. 314; Parker v. Washington R. Co., 207 Pa. St. 438 (but compare Mulligan v. Burrough, 243 Pa. St. 361); Texas R. Co. v. Phillips, 91 Tex. 278; Christensen v. Oregon R. Co., 29 Utah, 192; Blankenship v. Chesapeake R. Co., 94 Va. 449; Deputy v. Kimmell, 73 W. Va. 595 Accord.

Children are seldom made defendants in actions for negligence. Most of the discussions as to the standard of care required of children are to be found in cases where the children, or their parents or representatives, were plaintiffs seeking to recover for damage to the children alleged to be caused by defendant’s negligence, and where the defendant contended that the action was barred by the contributory negligence of the child. A good discussion where defendant was an infant may be found in Briese v. Maechtle, 146 Wis. 89.

85. Arguments and part of opinion omitted.

86. Northern R. Co. v. Heaton, 191 Fed. 24; Little Rock Traction Co. v. Nelson, 66 Ark. 494 (boy ten years old); Quincy Gas Co. v. Bauman, 203 Ill. 295, 104 Ill. App. 600 (seven); Fishburn v. Burlington R. Co., 127 Ia. 483 (six); Kentucky Hotel Co. v. Camp, 97 Ky. 424 (seven); McMahon v. Northern R. Co., 39 Md. 438 (six); Purcell v. Boston R. Co., 211 Mass. 79; Giaccobe v. Boston R. Co., 215 Mass. 224 (seven); Godfrey v. Boston R. Co., 215 Mass. 432 (six); Weitzel v. Detroit R. Co., 186 Mich. 7 (nine); Ritscher v. Orange R. Co., 79 N. J. Law, 462 (six); Verdon v. Automobile Co., 80 N. J. Law, 199 (seven); Citizen’s R. Co. v. Bell, 26 Ohio Cir. Ct. R. 691 (seven); Galveston R. Co. v. Moore, 59 Tex. 64 (six); Robinson v. Cone, 22 Vt. 213 (three); McVoy v. Oakes, 91 Wis. 214 (seven); Frasers v. Tramways Co., 20 Sc. L. R. 192 (six); Plantza v. Glasgow, 47 Sc. L. R. 688 (five) Accord.

A few jurisdictions have an absolute rule as to children under seven. Government R. Co. v. Hanlon, 53 Ala. 70; Chicago R. Co. v. Tuohy, 196 Ill. 410; Reichle v. Transit Co., 241 Pa. St. 1 (six); Schnurr v. Traction Co., 153 Pa. St. 29; Dodd v. Gas Co., 95 S. C. 9. Also several jurisdictions rely on presumptions as to children between seven and fourteen (or sometimes twelve). Birmingham R. Co. v. Jones, 146 Ala. 277; City v. McLain, 67 Miss. 4; Hebert v. Hudson Electric Co., 136 App. Div. 107; Rolin v. Tobacco Co., 141 N. C. 300; Dowlen v. Texas Power Co., (Tex. Civ. App.) 174 S. W. 674; City v. Shull, 97 Va. 419; Traction Co. v. Wilkinson, 101 Va. 394. See also (as to children over fourteen) Central R. Co. v. Phillips, 91 Ga. 526; Frauenthal v. Laclede Gas Co., 67 Mo. App. 1; Murphy v. Perlstein, 73 App. Div. 256; Travers v. Hartmann, 5 Boyce, 302.

In Berdos v. Tremont Mills, 209 Mass. 489, 494, Rugg, J., says: “It is common knowledge that children under the age of fourteen are lacking in prudence, foresight, and restraint, and that their curiosity and restlessness have a tendency to get them into positions of danger. There is some point in every life where these conditions are present in such degree as to deprive the child of capacity to assume risk intelligently, or to be guilty of negligence consciously. That point varies in different children for divers reasons. There is no hard and fast rule that at any particular age a minor is presumed to be able to comprehend risks or to be capable of negligence. Extreme cases can be stated which obviously fall on one side or the other of the line. In some jurisdictions it has been held that prima facie a child under fourteen years of age is presumed not to be capable of contributory negligence. Tucker v. Buffalo Cotton Mills, 76 S. C. 539, and cases cited. Tutwiler Coal, Coke & Iron Co. v. Enslen, 129 Ala. 336. But the sounder doctrine seems to be that age is an important though not decisive factor in determining capacity, and that the decision of that question is not helped or hampered by any legal presumption. This is the law of this Commonwealth.”

Compare Jacobs v. Koehler Co., 208 N. Y. 416.

In Kyle v. Boston R. Co., 215 Mass. 260, a boy five years and eleven months old, who ran in front of an approaching car was held negligent as a matter of law. It has generally been held that children under six are not to be charged with negligence. See City v. Lewis, 155 Ky. 832; Johnson v. City, 164 Mich. 251; Love v. Detroit R. Co., 170 Mich. 1; Eskildsen v. City, 29 Wash. 583.

As to lower ages, see Morgan v. Bridge Co., 5 Dill. 96; Louisville R. Co. v. Arp, 136 Ga. 489; Indianapolis R. Co. v. Bordenchecker, 33 Ind. App. 138; Fink v. City, 115 Ia. 641; Berry v. St. Louis R. Co., 214 Mo. 593. Compare Gardner v. Grace, 1 F. & F. 359; Dorr v. Atlantic R. Co., 76 N. H. 160 (five and a half); Campbell v. Ord, 11 Sc. L. R. 54; McGregor v. Ross, 20 Sc. L. R. 462.

87. Statement abridged. Only so much of the opinion is given as relates to a single point.

88. Garrison v. St. Louis R. Co., 92 Ark. 437; De Soto Co. v. Hill, 179 Ala. 186 (personal standard applied to a boy brighter than his age); Jollimore v. Connecticut Co., 86 Conn. 314; Herrington v. City, 125 Ga. 58; Elk Mills v. Grant, 140 Ga. 727; Keller v. Gaskill, 9 Ind. App. 670; Cole v. Searfoss, 49 Ind. App. 334; Louisville R. Co. v. Allnutt, 150 Ky. 831; Van Natta v. Peoples R. Co., 133 Mo. 13; Spillane v. Missouri R. Co., 135 Mo. 414; Moeller v. United R. Co., 242 Mo. 721; David v. West Jersey R. Co., 84 N. J. Law, 685; Marius v. Motor Co., 146 App. Div. 608; Gigoux v. County, 73 Or. 212; Bridger v. Asheville R. Co., 27 S. C. 456; North Texas Construction Co. v. Bostick, 98 Tex. 239; Kyne v. Southern R. Co., 41 Utah, 368; Quinn v. Ross Car Co., 157 Wis. 543 Accord. As to experience, see Stern v. Bensieck, 161 Mo. 146.

Section 2901 of the Georgia Civil Code is as follows:—

“Due care in a child of tender years is such care as its capacity, mental and physical, fits it for exercising in the actual circumstances of the occasion and situation under investigation.”

In Harrington v. Mayor, 125 Ga. 58, 60, Lumpkin, J., said: “The average child of its own age is not the standard by which to measure its legal diligence with exactness. ‘Such care as the capacity of the particular child enables it to use naturally and reasonably, is what the law requires.’” Compare Bleckley, C. J., in Western & Atlantic R. Co. v. Young, 81 Ga. 397, 416, 417.

89. The liability of an infant for his torts is universally recognized.

Trespass. Y. B. 35 Hen. VI. f. 11, pl. 18; Burnard v. Haggis, 14 C. B. N. S. 45; Neal v. Gillett, 23 Conn. 437; Wilson v. Garrard, 59 Ill. 51; Peterson v. Haffner, 59 Ind. 130; Scott v. Watson, 46 Me. 362; Marshall v. Wing, 50 Me. 62; Sikes v. Johnson, 16 Mass. 389; School District v. Bragdon, 23 N. H. 507; Campbell v. Stakes, 2 Wend. 137; Hartfield v. Roper, 21 Wend. 615, 620; Tifft v. Tifft, 4 Denio, 175; Conklin v. Thompson, 29 Barb. 218; Huchting v. Engel, 17 Wis. 230; Vosburg v. Putney, 80 Wis. 523; Vosburg v. Putney, 86 Wis. 278.

Conversion. Mills v. Graham, 1 B. & P. N. R. 140; Bristow v. Clark, 1 Esp. 171; Vasse v. Smith, 6 Cranch, 226; Oliver v. McClellan, 21 Ala. 675; Ashlock v. Vivell, 29 Ill. App. 388; Lewis v. Littlefield, 15 Me. 233; Caswell v. Parker, 96 Me. 39 (semble); Homer v. Thwing, 3 Pick. 492; Walker v. Davis, 1 Gray, 506; Wheeler Co. v. Jacobs, 2 Misc. 236; Green v. Sperry, 16 Vt. 390; Baxter v. Bush, 29 Vt. 465.

Deceit. Fitts v. Hall, 9 N. H. 441; Word v. Vance, 1 N. & McC. 197.

Defamation. Hodsman v. Grissell, Noy, 129; Drane v. Pawley, 8 Ky. Law Rep. 530; Fears v. Riley, 148 Mo. 49.

Negligence. Jennings v. Rundall, 8 T. R. 335; Dixon v. Bell, 1 Stark. 287; Marsh v. Loader, 14 C. B. N. S. 535; Latt v. Booth, 3 Car. & K. 292; Humphrey v. Douglass, 10 Vt. 71 Accord.

In Scott v. Watson, supra, Appleton, J., said: “Nor is his infancy any defence, for infants are liable for torts.... The parent is not answerable for the torts of his minor child, committed in his absence and without his authority or approval, but the minor is answerable therefor. Tifft v. Tifft, 4 Denio, 177. The minor is not exempt from liability, though the trespass was committed by the express command of the father. Humphrey v. Douglass, 10 Vt. 71.

“Nor can the defendant derive any support from the scriptural injunction to children of obedience to their parents, invoked in defence. No such construction can be given to the command, ‘Children, obey your parents in the Lord, for this is right,’ as to sanction or justify the trespass of the son upon the land of another, and the asportation of his crops, even though done by the express commands of his father. The defence is as unsound in its theology as it is baseless in its law.” [Smith v. Kron, 96 N. C. 392, 397; O’Leary v. Brooks, 7 N. D. 554; Humphrey v. Douglass, 10 Vt. 71; Huchting v. Engel, 17 Wis. 230 Accord.]

May, J., dissented, saying: “I am not quite satisfied with either the law or the theology of the opinion in this case. That sins of ignorance may be winked at, is both a dictate of reason and of Scripture. It is true, as a general rule, that infants who have arrived at the age of discretion are liable for their tortious acts. But, for the protection of infants, ought not the rule to be limited to cases where the infant acts under such circumstances that he must know or be presumed to know that the acts which he commits are unauthorized and wrong, when it appears that in the commission of the acts he was under the control and direction of his father? Will not an opposite doctrine tend to encourage disobedience in the child, and thus be subversive of the best interests of the community? Will it not also tend to subject him to embarrassment and insolvency when he shall arrive at full age? If all the members of a family under age are to be held liable in trespass or trover for the food which they eat, when that food is in fact the property of another, but, being set before them, they partake of it, in ignorance of such fact, by the command or direction of the parent, and under the belief that it is his, will not such a doctrine be in conflict with the principle that the common law is intended as a shield and protection against the improvidence of infancy? While the decided cases upon this subject seem to be limited to cases of contract, is there not the same reason for extending it, and applying it to cases like the one before us? In all the cases which I have examined in which infants have been held liable, the proof shows acts of positive wrong committed under circumstances where the infant must have known the nature and character of his acts. If the doctrines of the opinion are to prevail in a case like this, then the common law is but the revival of the old doctrine that the parents, by eating sour grapes, have set the children’s teeth on edge. The rule that a servant who acts in ignorance of the rights of his principal is to be held liable for his acts, does not fall within the principles for which I contend.”

90. Welch v. Durand, 36 Conn. 182; Flinn v. State, 24 Ind. 286; Peterson v. Haffner, 59 Ind. 130; Mercer v. Corbin, 117 Ind. 450; Commonwealth v. Lister, 15 Phila. 405; Vosburg v. Putney, 80 Wis. 523; Vosburg v. Putney, 86 Wis. 278 Accord.

91. The topics dealt with in this section do not concern the substantive law of tort. They fall rather under the heads of procedure and evidence. But, without some knowledge of these particular subjects, it is difficult to understand the ground of decision in some of the cases on the general subject of negligence.

92. Statement, arguments, and parts of opinions omitted.

93. This decision and Bridges v. North London R. Co., L. R. 7 H. L. 213, put an end in England to a conflict of authority as to the power of the judge to withdraw the case from the jury where there was an “invitation to alight” or “slamming the door” of a compartment car. See the cases cited in 21 Halsbury, Laws of England, 445.

A like question, much discussed in the United States, is: A man, without looking or listening, attempts to cross the track of a steam railway, and is hit by a negligently managed engine. Should the judge rule that crossing without looking and listening (or crossing without stopping, looking, and listening) is, as matter of law, negligent conduct? Or should the judge tell the jury that such conduct is evidence from which negligence may be inferred, and that it is for them to say whether they do infer it? As to this, there is a conflict of authority. See discussion and collected cases in 3 Elliott on Railroads (1st ed.) § 1167; 2 Thompson, Commentaries on the Law of Negligence, Chap. 52, Article 2, §§ 1637–1661, especially §§ 1640, 1649, 1650, 1653; 33 Cyc. 1116 ff.; Beach on Contributory Negligence (3d ed.) §§ 181, 182.

Other like questions arise in case of alighting from a moving car: Puget Sound R. Co. v. Felt, 181 Fed. 938; Birmingham R. Co. v. Girod, 164 Ala. 10; St. Louis R. Co. v. Plott, 108 Ark. 292; Carr v. Eel River R. Co., 98 Cal. 366; Coursey v. Southern R. Co., 113 Ga. 297; Ardison v. Illinois R. Co., 249 Ill. 300; Louisville R. Co. v. Crunk, 119 Ind. 542; Walters v. Missouri R. Co., 82 Kan. 739; Hayden v. Chicago R. Co., 160 Ky. 836; Cumberland R. Co. v. Maugans, 61 Md. 53; Street v. Chicago R. Co., 124 Minn. 517; Johnson v. St. Joseph R. Co., 143 Mo. App. 376; Willis v. Metropolitan R. Co., 63 App. Div. 332; Pennsylvania R. Co. v. Lyons, 129 Pa. St. 113; Kearney v. Seaboard R. Co., 158 N. C. 521; San Antonio Traction Co. v. Badgett, (Tex. Civ. App.) 158 S. W. 803; Gaines v. Ogden R. Co., 44 Utah, 512; Breeden v. Seattle R. Co., 60 Wash. 522.

Boarding moving car: Central R. Co. v. Hingson, 186 Ala. 40; South Chicago R. Co. v. Dufresne, 200 Ill. 456; Chicago Traction Co. v. Lundahl, 215 Ill. 289; Pence v. Wabash R. Co., 116 Ia. 279; Jonas v. South Covington R. Co., 162 Ky. 171; Mabry v. Boston R. Co., 214 Mass. 463; Foley v. Detroit R. Co., 179 Mich. 586; Hull v. Minneapolis R. Co., 116 Minn. 349; Nolan v. Metropolitan R. Co., 250 Mo. 602.

Standing on platform or running board: Texas R. Co. v. Lacey, 185 Fed. 225; Central R. Co. v. Brown, 165 Ala. 493; Holloway v. Pasadena R. Co., 130 Cal. 177; Augusta R. Co. v. Snider, 118 Ga. 146; Chicago R. Co. v. Newell, 212 Ill. 332; Math v. Chicago R. Co., 243 Ill. 114; Louisville R. Co. v. Stillwell, 142 Ky. 330; Blair v. Lewiston R. Co., 110 Me. 235; Olund v. Worcester R. Co., 206 Mass. 544; Heshion v. Boston R. Co., 208 Mass. 117; Wheeler v. Boston R. Co., 220 Mass. 298; Lacey v. Minneapolis R. Co., 118 Minn. 301; Setzler v. Metropolitan R. Co., 227 Mo. 454; Trussell v. Traction Co., 79 N. J. Law, 533; Ward v. International R. Co., 206 N. Y. 83; Edwards v. New Jersey R. Co., 144 App. Div. 554; Germantown R. Co. v. Walling, 97 Pa. St. 55; Brice v. Southern R. Co., 85 S. C. 216.

Part of body protruding from car: Georgetown R. Co. v. Smith, 25 App. D. C. 259; Clerc v. Morgan’s R. Co., 107 La. 370; Lange v. Metropolitan R. Co., 151 Mo. App. 500; Kuttner v. Central R. Co., 80 N. J. Law, 11; Goller v. Fonda R. Co., 110 App. Div. 620.

94. But see L. R. 6 Q. B. 760–761.

95. Arguments omitted; also the concurring opinion of Lush, J., and the dissenting opinion of Hannen, J.

96. Affirmed in the Exchequer Chamber, L. R. 6 Q. B. 759.

Byrne v. Boadle, 2 H. & C. 722; Scott v. London Docks Co., 3 H. & C. 596; Skinner v. London R. Co., 5 Ex. 787; The Joseph D. Thomas, 81 Fed. 578; Hastorf v. Hudson River Co., 110 Fed. 669; Cincinnati R. Co. v. South Fork Coal Co., 139 Fed. 528; Kahn v. Cap Co., 139 Cal. 340; Armour v. Golkowska, 202 Ill. 144; Talge v. Hockett, 55 Ind. App. 303; Nicoll v. Sweet, 163 Ia. 683; Melvin v. Pennsylvania Steel Co., 180 Mass. 196; Hull v. Berkshire R. Co., 217 Mass. 361; Cleary v. Cavanaugh, 219 Mass. 281; Scharff v. Southern Construction Co., 115 Mo. App. 157; Pratt v. Missouri R. Co., 139 Mo. App. 502; Mullen v. St. John, 57 N. Y. 567; Wolf v. American Society, 164 N. Y. 30; Griffen v. Manice, 166 N. Y. 188; Kennedy v. McAllaster, 31 App. Div. 453; Scheider v. American Bridge Co., 78 App. Div. 163; Travers v. Murray, 87 App. Div. 552; Connor v. Koch, 89 App. Div. 33; Larkin v. Reid Co., 161 App. Div. 77; Papazian v. Baumgartner, 49 Misc. 244; Barnes v. Automobile Co., 32 Ohio Cir. Ct. R. 233; Muskogee Traction Co. v. McIntire, 37 Okl. 684; Edwards v. Manufacturers’ Co., 27 R. I. 248; Patterson v. Brewing Co., 16 S. D. 33; Richmond R. Co. v. Hudgins, 100 Va. 409; Gibson v. Chicago R. Co., 61 Wash. 639; Carroll v. Chicago R. Co., 99 Wis. 399; Klitzke v. Webb, 120 Wis. 254; Schmidt v. Johnson Co., 145 Wis. 49; Snyder v. Wheeling Electrical Co., 43 W. Va. 661 Accord.

Where the declaration alleges negligence and sets forth the nature and particulars of the accident but not the particulars of the alleged negligence, plaintiff may rely upon this doctrine, if the accident is of such a kind as to indicate that it would not have happened without negligence on the part of the defendant. James v. Boston R. Co., 204 Mass. 158.

The doctrine applies only in the absence of explanation. Cook v. Newhall, 213 Mass. 392. The inference may be met by defendant’s showing the real cause of the accident. Nawrocki v. Chicago R. Co., 156 Ill. App. 563; Parsons v. Hecla Iron Works, 186 Mass. 221; Cohen v. Farmers’ Co., 70 Misc. 548; Stearns v. Spinning Co., 184 Pa. St. 519; Scarpelli v. Washington Power Co., 63 Wash. 18. By plaintiff showing by his own witnesses just how the accident happened. Buckland v. New York R. Co., 181 Mass. 3. Or by defendant’s showing that reasonable care was employed to prevent all probable sources of accident. Thompson v. St. Louis R. Co., 243 Mo. 336, 355; Sweeney v. Edison Co., 158 App. Div. 449.

“There are many cases that hold that an unexplained accident with a machine, not liable to occur if such machine was properly constructed and in a proper state of repair, is evidence of negligence; as in Spaulding v. C. & N. W. R. Co., 30 Wis. 110, where it was held that the escape of fire from a passing locomotive engine, sufficient to cause damage, raised a presumption of improper construction or insufficient repair or negligent handling of such engine. To the same effect are Cummings v. Nat. Furnace Co., 60 Wis. 603; Kurz & Huttenlocher Ice Co. v. M. & N. R. Co., 84 Wis. 171; Stacy v. M., L. S. & W. R. Co., 85 Wis. 225; Mullen v. St. John, 57 N. Y. 567; Volkmar v. Manhattan R. Co., 134 N. Y. 418; McCarragher v. Rogers, 120 N. Y. 526, and many others that might be cited. Such cases lay down a very well-recognized principle in the law of negligence, but do not ... conflict in the slightest degree with numerous authorities that go on another principle, just as well-recognized and firmly established, to the effect that undisputed proof of freedom of the machine from all discoverable defects, either in construction or repair, effectually overcomes any mere inference or presumption arising from the happening of the accident, so as to leave no question in that regard for the jury; as in Spaulding v. C. & N. W. R. Co., 33 Wis. 582, where this court held the inference that a locomotive engine was defective, arising merely from the escape of fire therefrom sufficient to cause damage, rebutted by conclusive proof that the engine was free from discoverable defects, so as to leave nothing on that point for the consideration of a jury.” Marshall, J., Vorbrich v. Geuder Co., 96 Wis. 277, 284. See Green v. Urban Constructing Co., 106 App. Div. 460 Accord.