Chapter IX: Section III: The Standard of Care (2)

Assumpsit for negligence in losing 764½ doubloons, intrusted to the defendant to be carried from New York to Boston, as a gratuitous bailee. The gold was put up in two distinct bags, one within the other, and at the trial, upon the general issue, it appeared that the defendant, who was a money broker, brought them on board of the steamboat bound from New York to Providence; that in the morning while the steamboat lay at New York, and a short time before sailing, one of the bags was discovered to be lost, and that the other bag was left by the defendant on a table in his valise in the cabin, for a few moments only, while he went on deck to send information of the supposed loss to the plaintiffs, there being then a large number of passengers on board, and the loss being publicly known among them. On the defendant’s return the second bag was also missing and after every search no trace of the manner of the loss could be ascertained. The valise containing both bags was brought on board by the defendant on the preceding evening, and put by him in a berth in the forward cabin. He left it there all night, having gone in the evening to the theatre, and on his return having slept in the middle cabin. The defendant had his own money to a considerable amount in the same valise. There was evidence to show that he made inquiries on board, if the valise would be safe, and that he was informed, that if it contained articles of value, it had better be put into the custody of the captain’s clerk in the bar, under lock and key. There were many other circumstances in the case. The argument at the trial turned wholly on the question of gross negligence, and all the facts were fully commented on by counsel. But as the case is intended only to present the discussion on the question of law, it is not thought necessary to recapitulate them.[76]

STORY, J., after summing up the facts, said, I agree to the law as laid down at the bar, that in cases of bailees without reward, they are liable only for gross negligence. Such are depositaries, or persons receiving deposits without reward for their care; and mandataries, or persons receiving goods to carry from one place to another without reward. The latter is the predicament of the defendant. He undertook to carry the gold in question for the plaintiff, gratuitously, from New York to Providence, and he is not responsible unless he has been guilty of gross negligence. Nothing in this case arises out of the personal character of the defendant, as broker. He is not shown to be either more or less negligent than brokers generally are; nor if he was, is that fact brought home to the knowledge of the plaintiffs. They confided the money to him as a broker of ordinary diligence and care, having no other knowledge of him; and, therefore, no question arises as to what would have been the case, if the plaintiffs had known him to be a very careless or a very attentive man. Jones’ Bail. 46. The language of the books, as to what constitutes gross negligence, or not, is sometimes loose and inaccurate from the general manner in which propositions are stated. When it is said, that gross negligence is equivalent to fraud, it is not meant that it cannot exist without fraud. There may be very gross negligence in cases where there is no pretence that the party has been guilty of fraud, though certainly such negligence is often presumptive of fraud. In determining what is gross negligence, we must take into consideration what is the nature of the thing bailed. If it be of little value, less care is required than if it be of great value. If a bag of apples were left in a street for a short time, without a person to guard it, it would certainly not be more than ordinary neglect. But if the bag were of jewels or gold, such conduct would be gross negligence. In short, care and diligence are to be proportional to the value of the goods, the temptation and facility of stealing them, and the danger of losing them. So Sir William Jones lays down the law. “Diamonds, gold, and precious trinkets,” says he, “ought from their nature to be kept with peculiar care, under lock and key; it would, therefore, be gross negligence in a depositary to leave such deposit in an open antechamber; and _ordinary_ neglect, at least, to let them remain on the table, where they might possibly tempt his servants.” Jones’ Bail. 38, 46, 62. So in Smith _v._ Horne, 2 Moore’s R. 18, it was held to be gross negligence in the case of a carrier, under the usual notice of not being responsible for goods above £5 in value, to send goods in a cart with one man, when two were usually sent to see to the delivery of them. So in Booth _v._ Wilson, 1 Barn. & Ald. 59, it was held gross negligence in a gratuitous bailee to put a horse into a dangerous pasture. In Batson _v._ Donovan, 4 Barn. & Ald. 21, the general doctrine was admitted in the fullest terms. It appears to me that the true way of considering cases of this nature is, to consider whether the party has omitted that care which bailees, without hire, or mandataries of ordinary prudence usually take of property of this nature. If he has, then it constitutes a case of gross negligence. The question is not whether he has omitted that care, which very prudent persons usually take of their own property, for the omission of that would be but slight negligence; nor whether he has omitted that care which prudent persons ordinarily take of their own property, for that would be but ordinary negligence: but whether there be a want of that care, which men of common sense, however inattentive, usually take, or ought to be presumed to take of their property, for that is gross negligence. The contract of bailees without reward is not merely for good faith, but for such care as persons of common prudence in their situation usually bestow upon such property. If they omit such care, it is gross negligence.

The present is a case of a mandatary of money. Such property is by all persons, negligent as well as prudent, guarded with much greater care than common property. The defendant is a broker, accustomed to the use and transportation of money, and it must be presumed he is a person of ordinary diligence. He kept his own money in the same valise; and took no better care of it than of the plaintiff’s. Still if the jury are of opinion that he omitted to take that reasonable care of the gold which bailees without reward in his situation usually take, or which he himself usually took of such property, under such circumstances, he has been guilty of gross negligence.

_Verdict for the plaintiffs for $5700, the amount of one bag of the gold; for the defendant as to the other bag._[77]

DOLPHIN _v._ WORCESTER STREET R. CO.
SUPREME JUDICIAL COURT, MASSACHUSETTS, OCTOBER 18, 1905.
_Reported in 189 Massachusetts Reports, 270._

Action of tort under Revised Laws, chapter 111, section 267, for the death of a passenger on a street railway.[78]

The material portions of the statute are as follows:—

“If a corporation which operates a railroad or a street railway, by reason of its negligence or by reason of the unfitness or gross negligence of its agents or servants, while engaged in its business,[79] causes the death of a passenger, or of a person who is in the exercise of due care and who is not a passenger or in the employ of such corporation, it shall be punished by a fine of not less than five hundred nor more than five thousand dollars, which shall be recovered by an indictment,” and shall be paid to the executor or administrator, to the use of the widow and children or the next of kin. “Such corporation shall also be liable in damages in the sum of not less than five hundred nor more than five thousand dollars, which shall be assessed with reference to the degree of culpability of the corporation or of its servants or agents, and shall be recovered in an action of tort ... by the executor or administrator of the deceased for the use of the persons hereinbefore specified in the case of an indictment.... But no executor or administrator shall, for the same cause, avail himself of more than one of the remedies given by the provisions of this section.”

At the trial the plaintiff requested the following rulings:—

“6. When the duty of exercising the highest degree of care is incumbent upon the defendant, any failure upon the part of its servants to exercise that degree of care is gross negligence.

“7. The term ‘gross’ in the allegation gross negligence, when used with reference to the degree of care required and not fulfilled, is merely an expletive, when the degree of care required is the very highest.

“8. There are no degrees of negligence.”

The plaintiff excepted to the refusal of the judge to give the rulings requested, and to such parts of the charge as were in conflict with them. The defendant had a verdict, and the case is here on these exceptions.

LORING, J.... The judge was right in refusing to give the sixth ruling asked for. A failure to exercise the highest degree of care is slight negligence.

3. The seventh ruling requested was wrong. The term “gross negligence” in a case where the degree of care due is the highest degree of care means that there has been a gross failure to exercise that degree of care.[80]

4. There are degrees of care in cases under R. L. c. 111, § 267, by force of that act.[81]

_Exceptions overruled._

CLEVELAND ROLLING MILL CO. _v._ CORRIGAN
SUPREME COURT, OHIO, FEBRUARY 26, 1889.
_Reported in 46 Ohio State Reports, 283._

Error to Circuit Court of Cuyahoga County.

The plaintiff below, John Corrigan, an infant under the age of fourteen, by his guardian, sued the Rolling Mill Company for damages suffered while in the defendants’ employ, and which he alleged were caused by their negligence.

The answer of the defendants alleged, among other defences, that the injury occurred solely through the plaintiff’s fault.

As to this ground of defence, the Court instructed the jury in part as follows:—

It was the duty of the plaintiff to use ordinary care and prudence; just such care and prudence as a boy of his age, of ordinary care and prudence, would use under like or similar circumstances. You should take into consideration his age, the judgment and knowledge he possessed.

_Verdict and judgment for plaintiff._

The Company filed its petition in error.[82]

WILLIAMS, J. The only questions presented in this case are those arising upon the special instructions given by the Court in response to the request of the jury. These instructions, the plaintiff in error contends, are erroneous in their entirety and in detail.

1. First, it is claimed that the Court erred in the statement of the plaintiff’s duty, in the opening proposition of the charge, wherein the jury were instructed that “it was the duty of the plaintiff to use ordinary care,” which the Court defined to be “just such care as boys of that age, of ordinary care and prudence, would use under like circumstances,” and that the jury “should take into consideration the age of the plaintiff, and the judgment and knowledge he possessed.” We have found no decision of this Court upon the subject of the contributory negligence of infants, or the measure of care required of them. Elsewhere the decisions are conflicting. Each of three different rules on the subject has found judicial sanction. One rule requires of children the same standard of care, judgment, and discretion, in anticipating and avoiding injury, as adults are bound to exercise.[83] Another wholly exempts small children from the doctrine of contributory negligence. Between these extremes a third and more reasonable rule has grown into favor, and is now supported by the great weight of authority, which is, that a child is held to no greater care than is usually possessed by children of the same age. Authors and judges, however, do not always employ the same language in giving expression to the rule. In Beach on Contributory Negligence, sec. 46, it is thus expressed: “An infant plaintiff who, on the one hand, is not so young as to escape entirely all legal accountability, and on the other hand is not so mature as to be held to the responsibility of an adult is, of course, in cases involving the question of negligence, to be held responsible for ordinary care, and ordinary care must mean, in this connection, that degree of care and prudence which may reasonably be expected of a child.” The decisions enforcing this rule, that children are to be held responsible only for such degree of care and prudence as may reasonably be expected of them, taking due account of their age and the particular circumstances, are very numerous. “It is well settled,” says Mr. Justice Hunt in Railroad Company _v._ Stout, 17 Wall. 657, “that the conduct of an infant of tender years is not to be judged by the same rule which governs that of an adult.... The care and caution required of a child is according to his maturity and capacity only, and this is to be determined in each case by the circumstances of that case.” In Shearman & Redfield on Negligence, sec. 73, it is said to be “now settled by the overwhelming weight of authority that a child is held, as far as he is personally concerned, only to the exercise of such care and discretion as is reasonably to be expected from children of his own age.” Another author says, “A child is only bound to exercise such a degree of care as children of his particular age may be presumed capable of exercising.” Whittaker’s Smith on Neg., 411.

This rule appears to rest upon sound reason as well as authority. To constitute contributory negligence in any case there must be a want of ordinary care and a proximate connection between such want of care and the injury complained of; and ordinary care is that degree of care which persons of ordinary care and prudence are accustomed to use under similar circumstances. Children constitute a class of persons of less discretion and judgment than adults, of which all reasonably informed men are aware. Hence ordinarily prudent men reasonably expect that children will exercise only the care and prudence of children, and no greater degree of care should be required of them than is usual under the circumstances among careful and prudent persons of the class to which they belong. We think it a sound rule, therefore, that in the application of the doctrine of contributory negligence to children, in actions by them or in their behalf for injuries occasioned by the negligence of others, their conduct should not be judged by the same rule which governs that of adults, and while it is their duty to exercise ordinary care to avoid the injuries of which they complain, ordinary care for them is that degree of care which children of the same age, of ordinary care and prudence, are accustomed to exercise under similar circumstances.

That portion of the charge of the Court under discussion is in substantial conformity to this conclusion. The care and prudence which a boy of the plaintiff’s age of ordinary care and prudence “would use under like and similar circumstances,” as expressed in the charge, is such care as “is reasonably to be expected from a boy of his age,” or “which boys of his age usually exercise,” as the books express it. No different effect is given to the charge of which the plaintiff in error can complain, by the direction to the jury to take into consideration the age of the boy “and the judgment and knowledge he possessed.” This did not diminish the degree of care required by the previous portion of the instruction.

_Judgment affirmed._[84]

STONE _v._ DRY DOCK R. CO.
COURT OF APPEALS, NEW YORK, JUNE 4, 1889.
_Reported in 115 New York Reports, 104._

Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made October 26, 1887, which affirmed a judgment in favor of defendant, entered upon an order nonsuiting plaintiff on trial.

This was an action to recover damages for the alleged negligence in causing the death of plaintiff’s intestate, a child of seven years and three or four months old.

The facts, so far as material, are stated in the opinion.[85]

ANDREWS, J. The nonsuit was placed on the ground that an infant seven years of age was _sui juris_, and that the act of the child in crossing the street in front of the approaching car was negligence on her part, which contributed to her death, and barred a recovery. We think the case should have been submitted to the jury.

The negligence of the driver of the car is conceded. His conduct in driving rapidly along Canal Street at its intersection with Orchard Street, without looking ahead, but with his eyes turned to the inside of the car, was grossly negligent. Mangam _v._ Brooklyn R. R. Co., 38 N. Y. 455; Railroad Co. _v._ Gladmon, 15 Wall. 401. It cannot be asserted as a proposition of law that a child just passed seven years of age is _sui juris_, so as to be chargeable with negligence. The law does not define when a child becomes _sui juris_. Kunz _v._ City of Troy, 104 N. Y. 344. Infants under seven years of age are deemed incapable of committing crime, and by the common law such incapacity presumptively continues until the age of fourteen. An infant between those ages was regarded as within the age of possible discretion, but on a criminal charge against an infant between those years the burden was upon the prosecutor to show that the defendant had intelligence and maturity of judgment sufficient to render him capable of harboring a criminal intent. 1 Arch. 11. The Penal Code preserves the rule of the common law except that it fixes the age of twelve instead of fourteen as the time when the presumption of incapacity ceases. Penal Code, §§ 18, 19.

In administering civil remedies the law does not fix any arbitrary period when an infant is deemed capable of exercising judgment and discretion. It has been said in one case that an infant three or four years of age could not be regarded as _sui juris_, and the same was said in another case of an infant five years of age. Mangam _v._ Brooklyn R. R., _supra_; Fallon _v._ Central Park, N. & E. R. R. R. Co., 64 N. Y. 13. On the other hand, it was said in Cosgrove _v._ Ogden, 49 N. Y. 255, that a lad six years of age could not be assumed to be incapable of protecting himself from danger in streets or roads, and in another case that a boy of eleven years of age was competent to be trusted in the streets of a city. McMahon _v._ Mayor, &c., 33 N. Y. 642. From the nature of the case it is impossible to prescribe a fixed period when a child becomes _sui juris_. Some children reach the point earlier than others. It depends upon many things, such as natural capacity, physical conditions, training, habits of life, and surroundings. These and other circumstances may enter into the question. It becomes, therefore, a question of fact for the jury where the inquiry is material unless the child is of so very tender years that the Court can safely decide the fact. The trial Court misapprehended the case of Wendell _v._ New York Central Railroad Company, 91 N. Y. 420, in supposing that it decided, as a proposition of law, that a child of seven years was capable of exercising judgment so as to be chargeable with contributory negligence. It was assumed in that case, both on the trial and on appeal, that the child whose conduct was in question was capable of understanding, and did understand the peril of the situation, and the evidence placed it beyond doubt that he recklessly encountered the danger which resulted in his death. The boy was familiar with the crossing, and, eluding the flagman who tried to bar his way, attempted to run across the track in front of an approaching train in plain sight, and unfortunately slipped and fell, and was run over and killed. It appeared that he was a bright, active boy, accustomed to go to school and on errands alone, and sometimes was intrusted with the duty of driving a horse and wagon, and that on previous occasions he had been stopped by the flagman while attempting to cross the track in front of an approaching train, and had been warned of the danger. The Court held, upon this state of facts, that the boy was guilty of culpable negligence. But the case does not decide, as matter of law, that all children of the age of seven years are _sui juris_.

We are inclined to the opinion that in an action for an injury to a child of tender years, based on negligence, who may or may not have been _sui juris_ when the injury happened, and the fact is material as bearing upon the question of contributory negligence, the burden is upon the plaintiff to give some evidence that the party injured was not capable, as matter of fact, of exercising judgment and discretion. This rule would seem to be consistent with the principle now well settled in this State, that in an action for a personal injury, based on negligence, freedom from contributory negligence on the part of the party injured is an element of the cause of action. In the present case the only fact before the jury bearing upon the capacity of the child whose death was in question was that she was a girl seven years and three months old. This, we think, did not alone justify an inference that the child was incapable of exercising any degree of care. But, assuming that the child was chargeable with the exercise of some degree of care, we think it should have been left to the jury to determine whether she acted with that degree of prudence which might reasonably be expected, under the circumstances, of a child of her years. This measure of care is all that the law exacts in such a case. Thurber _v._ Harlem, B. M. & F. R. R. Co., 60 N. Y. 335.[86]

_Judgment reversed._

ILLINOIS IRON AND METAL COMPANY _v._ WEBER
SUPREME COURT, ILLINOIS, APRIL 16, 1902.
_Reported in 196 Illinois Reports, 526._

Appeal by original defendants from the decision of the Appellate Court for the First District; 89 Ill. App. 368.

Plaintiff was a newsboy, between eleven and twelve years old, and his stand was at Dearborn and Monroe streets in the city of Chicago. He was going from his home, about four miles distant, to his place of business. By permission of the driver, he got on a wagon loaded with brick. He stood up on the rear of the wagon behind the box, and held on to the hind end-gate of the wagon. The wagon was one of a procession of loaded teams in a street-car track. The next wagon behind was owned by defendant. The end of the pole of defendant’s wagon struck the plaintiff’s leg, inflicting a serious wound. Plaintiff had been in the paper business since he was nine years old, and had been in the habit of riding down town on wagons.

Under instructions, the substance of which is stated in the opinion, the jury found a verdict for plaintiff.[87]

CARTWRIGHT, J.... The first two instructions each directed the jury to find the defendant guilty, provided they should believe, from the evidence, the existence of certain facts. One of the essential facts which the law required to be found was that the plaintiff was in the exercise of ordinary care for his own safety, and each of those instructions informed the jury that the fact was proved if he was in the exercise of ordinary care for a boy of his age. They directed the jury to return a verdict for the plaintiff if they found he was in the exercise of ordinary care for a boy of his age and the defendant was negligent and the injury resulted. That was not a correct rule of law, since the question of care was not to be determined alone by the plaintiff’s age, but also from his intelligence, experience, and ability to understand and comprehend dangers and care for himself. The case was one in which the defendant was entitled to correct instructions upon that question. It was a question whether plaintiff was not guilty of negligence in riding where he did, in a procession of teams, outside of the box, behind the end-gate of the wagon. The position was a dangerous one, not provided or used for passengers or intended for such use. Plaintiff had a right to ride on the wagon with the driver’s consent, but it was his duty to use reasonable care for his own safety. There was a string of heavily loaded teams in the car tracks, where it was difficult, if not impossible, to turn out, and the difficulty and danger in stopping when one of a procession stops is matter of common knowledge. Cases cited as to the liability of common carriers of passengers where a car is full and a passenger rides upon the platform have no bearing on this question. Passengers are accustomed to be upon platforms and are sometimes compelled to ride there, and different rules are applied to a common carrier from those governing parties not in that relation. There was no necessity whatever for the plaintiff assuming the position that he did. These facts were not controverted or in dispute, but are gathered from his own testimony. If the damage to the plaintiff was caused by his own negligence in assuming such a position, he could not recover. In determining that question his age was to be taken into account, but it could not be said, as a matter of law, that he was too young to exercise any care for his personal safety or that he was incapable of negligence. Unquestionably, he was capable of exercising some degree of judgment and discretion and some degree of care for his own safety. He had lived in the city and had been engaged in business, and was accustomed to ride on wagons. Judge Thompson, in his Commentaries on Law of Negligence (vol. I, sect. 309), says: “Two lads of equal age and natural capacity, one of them raised in the country and the other in the city, might approach a given danger, and the one would be perfectly competent to care for himself while the other would be helpless in the face of it. Therefore, the capacity, the intelligence, the knowledge, the experience, and the discretion of the child are always evidentiary circumstances,—circumstances with reference to which each party has the right to introduce evidence, which evidence is to be considered by the jury.” The rule established by our own decisions is, that age is not the only element to be considered, but that intelligence, capacity, and experience are also to be taken into account. Weick _v._ Lander, 75 Ill. 93; City of Chicago _v._ Keefe, 114 Id. 222; Illinois Central Railroad Company _v._ Slater, 129 Id. 91.

* * * * *

_Reversed and remanded._[88]

BULLOCK _v._ BABCOCK
SUPREME COURT OF JUDICATURE, NEW YORK, OCTOBER, 1829.
_Reported in 3 Wendell, 391._

This was an action of trespass, assault, and battery.

In 1816, the defendant, then being about twelve years of age, shooting an arrow from a bow, struck the plaintiff and put out one of his eyes, the plaintiff being then between nine and ten years of age. The plaintiff and defendant were schoolmates. The boys attending the school were assembled near the school-house. One of them had a bow and arrow, with which he and the defendant had been shooting at a mark. Some remark was made by the plaintiff, when the defendant said, “I will shoot you,” and took the bow and arrow from another boy who then held it. The plaintiff ran into the school-house and hid behind a fire-board standing before the fire-place in the school-room. The defendant followed to the door of the school-room, and saying, “See me shoot that basket,” discharged the arrow. At that moment the plaintiff raised his head above the fire-board, and the arrow struck him. There was a basket standing on a desk in the direction that the arrow was aimed. When the arrow was shot, there were a number of boys in the school-room. There had been no quarrel between the boys. The plaintiff, however, on entering the school-house was frightened, and said he was afraid he would be shot. The plaintiff suffered great pain for two months, became blind of one eye, and for five years was disabled from attending school in consequence of the weakness of sight of the other eye. His mother became a widow; and when the plaintiff was able to attend school, her poverty prevented his receiving an ordinary education. This suit was commenced in 1827, within a year after the plaintiff attained his age.

The judge charged the jury that the shooting the arrow in the school-room where there were a number of boys assembled was an unlawful act; that it appeared to him to have been, at the least, grossly negligent and unjustifiable; and that, if the jury thought so, they ought to find a verdict for the plaintiff, with damages. The defendant excepted. The jury found for the plaintiff, with $180 damages, and a motion was now made to set aside the verdict.

BY THE COURT, MARCY, J. It is not, I apprehend, necessary for us to say whether the judge erred or not in his remark to the jury that, under the circumstances of the case, the act of the defendant in shooting the arrow in the school-room, where there were a number of scholars, was not lawful; for, if the act in itself was lawful, and there was not a proper care to guard against consequences injurious to others, the actor must be held responsible for such consequences.

In ordinary cases, if the injury is not the effect of an unavoidable accident, the person by whom it is inflicted is liable to respond in damages to the sufferer. Where, in shooting at butts, the archer’s arrow glanced and struck another, it was holden to be a trespass. Year-Book, 21 H. VII. fol. 28. So where a number of persons were lawfully exercising themselves at arms, one, whose gun accidentally went off, was held liable in trespass for the injury occasioned by the accident. Weaver _v._ Ward. Where, in a dark night, the defendant got on the wrong side of the road, and an injury ensued to the person of the plaintiff, trespass for the damage was sustained. Leame _v._ Bray, 3 East, 593. It is decided in the case of Wakeman _v._ Robinson, if the accident happen entirely without the fault of the defendant, or any blame being imputable to him, an action will not lie. In that case, the blame imputable to the defendant was, that, his horse being young and spirited, he used him without a curb rein; that in his alarm he probably pulled the wrong rein; and that he ought to have continued on in a straight course. The blame fairly imputed to the defendant, it will be perceived, must have been slight indeed, as it certainly was in the case of the injury done by the glancing of the arrow when shooting at a mark (a lawful act), and by the accidental discharge of the musket at a training; and yet, in each of these cases, an action for the injury was maintained. Unless a rule is to be applied to this case different from that applicable to a transaction between adults, the proof was most abundant to charge the defendant with the consequences of the injury. Infants, in the same manner as adults, are liable for trespass, slander, assault, &c.[89] Bing. on Infancy, 110; 8 T. R. 335; 16 Mass. Rep. 389; 2 Inst. 328. Where infants are the actors, that might probably be considered an unavoidable accident which would not be so considered where the actors are adults; but such a distinction, if it exists, does not apply to this case. The liability to answer in damages for trespass does not depend upon the mind or capacity of the actors; for idiots and lunatics, as we see by the case reported in Hobart, are responsible in the action of trespass for injuries inflicted by them. 1 Chit. Pl. 66.

_Motion for a new trial denied._[90]