Abraham Clark Freeman.

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plex subject of negligence, uniformity need not be looked for and can-
not be expected. The subject of negligence, as applied to children, has
been discussed through the reports from various standpoints. Opin-
ions diverge on nearly every important subdivision of the matter. The
old classification of the doctrine of negligence, a measure with **three
marks on it," is also inconvenient in handling this subject, because a
different measure is needed— an instrument of more gradations and
capable of more accurate adjustment to the facts of each particular case.
Hence, the present tendency, in at least a large class of cases, is to take
ordinary care as a quantity, variable as the occasion may require, to
measure the duty, ''sliding it up or down, so as to adjust it as near as
maybe to the reasonable requirements of the particular case." The
application of this measure of care will be shown below.

Injury to Child — Recovery l*y Farent — Negligence, —The degree of
care required of parents or guardians in keeping their children off
of streets, highways, or other places of danger, so as to entitle them
to recover for injuries to such children inflicted upon them while

* BBTKBENCB TO MOMOaBiLFBIO KOm.

Negligence, oontributory, infant trespas-ser: 81 Am. Rep. 206-218.

Negligence, dangerous premises, hotel elevator: 84 Am. Rep, 238-281

Negligence, contributory, infant trespasser: 40 Am. Rep. «67-670.

Negligence, parent and child, Imputed: 57 Am. Rep. 474-179.

Negligence, dangerous premises, infant trespasser: R9 Am. Rep. 28-28.

Master and servant, scope of employment, infant trespasser: 59 Am. Rep. AOI 404.

Contributory negligence, general principles of law of: 5H Am. Deo. 666-€7»,

Negligence of Infant as bar to recovery for personal injuries: 14 Am. St. Rep. 690-

Railroad companies, duty to trespassers on the track: 30 Am. St. Rep. 6S-6ft.
Proximate and remote cause: 36 Am. St. Rep. 807-8G1.



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Jane, 1895.] Barnes v. Shbbvbpobt City B. B. Co. 407

In such places, is such as persons of ordinary prudence exercise and
deem adequate for that purpose: Mangam v. Brooklyn R. R. Co., 38
N. y. 466; 9S Am. Dec.6«; O'FIaherty v. Union By. Co., 46 Mo. 70|
100 Am. Dec. 348. It is the duty of a parent to shield his youns child
from danger, and if, by his oven carelessness and neglect of the duty of
protection, he contributes to an injury to it, he is in pari delicto with
a negligent defendant, and cannot recover for such injury. Whether
the parent is negligent depends on whether, under the circumstances,
he takes reasonable care of his child : Johnson v. Reading Passenger
Ry., 160 Pa. St. 647; 40 Am. St. Rep. 752; Grant v. Fitchburg, 160
Mass. 16; 89 Am. St. Rep. 449; Western Union Tel. Co. v. Hoffman,
80 Tex. 420; 26 Am. St. Rep. 769; note to Atlanta etc. Ry. Co. v.
Oravitt, 44 Am. St. Rep. 180; Westbrook v. Mobile etc. R. R. Co., 66
Miss. 600; 14 Am. St. Rep. 587; Norfolk etc. R. R. Co. v. Groseclose,
«8 Va. 267 ; 29 Am. St. Rep. 718 ; Pratt Coal etc. Co. v. Brawley, 83 Ala.
371; 3 Am. St. Rep. 751; Hemmingway v. Chicago etc. Ry. Co., 72
Wis, 42; 7 Am. St. Rep. 823; Bliss v. Inhabitants of South Hadley,
145 Mass. 91; 1 Am. St. Rep. 441; Pittsburg etc. Ry. Co. v. Bumstead,
48 111. 221 ; 95 Am. Dec. 539; Bamberger v. Citizens* Street Ry. Co., 95
Tenn. 18; Senn v. Southern Ry. Co., 124 Mo. 621 ; Johnson v. Reading
City etc. Ry., 160 Pa. St. 647; 40 Am. St. Rep. 752; Jeffersonville etc.
R. R. Co. V. Bowen, 40 Ind. 545.

This is generally a question for the jury : Chicago v. Major, 18 111.
349; 68 Am. Dec. 5".3; Barrett v. Southern Pac. Co., 91 Cal. 296; 25
Am. St. Rep. 186; Lynch v. Smith, 104 Mass. 52; 6 Am. Rep. 1^8;
Weil V. Dry Dock etc. R. R. Co., 119 N. Y. 147; Slattery v. O'Connell,
153 Mass. 94; Higgins v. Deeney, 78 Cal. 578; Fink v. Missouri Furnace
Co., 10 Mo. App. 61; O'Brien v. McGlinchy, 68 Me. 552; Pittsburg etc.
R. R. Co. V. Pierson, 72 Pa. St. 169; Mangam v. Brooklyn R. R. Co.,
38 N. Y. 455; 98 Am. Dec. 66; O'Connor v. Boston etc. R. R., 135 Mass,
352; McGeary v. Eastern R. R. Co., 135 Mass. 363; Keyser v. Chicago
etc. Ry. Co., 56 Mich. 559; 56 Am. Rep. 405; Fallon v. Central Park
etc. R. R. Co., 64 N. Y. 13; Ihl v. Forty-Second Street etc. R. R. Co.,
47 N. Y. 317; 7 Am. Rep. 450; Mulligan v. Curtis, 100 Mass. 512; 97
Am. Dec. 121; Cosgrove v. Ogden, 49 N. Y. 255; 10 Am. Rep. 361;
Lederman y. Pennsylvania Ry. Co., 165 Pa. St. 118; 44 Am. St. Rep.
644 ; Marsland v. Murray, 148 Mass. 91 ; 12 Am. St. Rep. 620.

As to what facts and circumstances show negligence on the part of
parents in the care, management, and control of their children, where
injuries have resulted through various agencies, see the following cases:
fit. Louis etc. Ry. Co. v. Freeman, 36 Ark. 41 ; Casey v. Smith, 152
Mass. 294; 23 Am. St. Rep. 842; Foley v. Kew York etc. R. R. Co., 78
Hun, 248; Wright v. Maiden etc. R. R. Co., 4 Allen, 283.

As to when parents are not guilty of negligence per se in the care,
management, or control of their children, such as to prevent a recovery
for injuries occasioned by various agencies to their children through the
negligent acts of third persons, see illustrations given in the following
cases, viz: Cleveland etc. Ry. Co. v. Keely, 138 Ind. 600; Weissner y.
St. Paul etc. Ry. Co.,47 Minn. 468; O'Flaherty V.Union Ry. Co., 45 Mo,



70; 100 Am. Dec. 343; Schmidt v. Milwaukee etc. Ry. Co., 23 Wis. 186;

" ' ' n Ry. Co., 26 Or. "" ""

V. Central Cross etc. R. R. Co., 139 N. Y. 490; Wiley v. Long Island



99 Am. Dec. 158; Hedin v. Suburban Ry. Co., 26 Or. 155; Huerzelcr



R. R. Co., 76 Hun, 29; Skelton v. Larkin, 82 Hun, 388; Alabama etc.
R. R. Co. V. Dobbs, 101 Ala. 219; Karr v. Parks, 40 Cal. 188; Lederman
V. Pennsylvania Ry. Co., 165 Pa. St. 118; 44 Am. St. Rep. 644; Rosen-
€Tanz V. Lindell Rv. Co., 108 Mo. 90; 32 Am. St. Rep. 688; Donahoe v.
Wabash etc. Ry. Co., 83 Mo. 560; 53 Am. Rep. 594.

The parent may, of course, recover for an injury to his child of tender
years, occasioned by the negligent act of a third person, if the parent
was not negligent, and the child exercised care and prudence equal to
his capacity: Pittsburg etc. Ry. Co. v. Brumstead, 48 111. 221; 95 Am,
Dec. 539. All the circumstances are to be taken into account, and if the
parent took as mucn care of the child as reasonably prudent persona of



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408 Barnes v. Shbbvsfobt City R. R. C!a [Loaisianai

the same c1m0, and in the same litnation in life ordinarily do, then the
parent is not to be held guilty of Bocb negligence as will defeat his ao-
tion : Winters 7. Kansas City etc. By. Co., 99 Mo. 509 ; 17 Am. St. Bepb
691. He may also recover where the injury was committed wantonly,
willfully, or 'recklessly: O'Flaberty y. Union Ry. Co., 45 Mo. 70; 100
Am. Dec. 343; Westbrook v. Mobile etc. R. R. Co., 66 Miss. 560; 14
Am. St. Rep. 587; Hartfield v. Roper, 21 Wend. 615; 34 Am. Dec. 273;
Mangam t. Brooklyn R. R. Co., 38 N. Y. 455; 98 Am. Dec. 66.

The negligence of the parent to defeat bis action must be the proxi-
mate cause of the injury: Winters ▼. Kansas City etc. Ry. Co., 99 Mo.
500; 17 Am. St. Rep. 591. But the negligence of a defendant in injur-
ing a person is not relieved by the fact that he is diseased. Thus, if a
boy, at the time of receiving a personal injury, has microbes in his
system, which aggravate the injury, that fact does not relieve from re-
sponsibility the person whose negligence caused the injury, where it
does not appear that the microbes would have done harm by them-
selves: Crane Elevator Co. v. Lippert, 63 Fed. Rep. 942.

The negligence of a parent or custodian of a child, however, is not,
according to what we conceive to be the preponderance of authority,
any justification for others xo injure it. Hence, if suit is brought bv or
on behalf of an infant for an injury sustained through theactofanotber,
contributory negligence on the part of its parents, or others standing in
loco parentis, does not operate as a bar to recovery, or present any de-
fense to the suit: Atlanta etc. Ry. Co. v. Gravitt, 93 Ga. 369; 44 Am.
St. Rep. 145, and note; Western Union Tel. Co. v. Hoffman, 80 Tex.
420; 26 Am. St. Rep. 759; Rosenkranz v. Lindel Ry. Co., 108 Mo. 9;
32 Am. St. Rep. 588; Westbrook v. Mobile etc. R. R. Co., 66 Miss 560;
14 Am. St. Rep. 587, an'l note; Norfolk etc. R. R. Co. v. Groseclose, 88
Va. 267; 29 Am. St. Rep. 718; Bottoms v. Seaboard etc. R. R. Co., 114
N. C. 699; 41 Am. St. Kep. 799, where many cases are cited and dis-
cussed ; Wiswell v. Doyle, 160 Mass. 42; 39 Am. St. Rep. 451, and note;
Winters v. Kansas City etc. Ry. Co., 99 Mo. 509; 17 Am. St. Rep. 591;
Wymore v. Mahaska County, 78 Iowa, 396; 16 Am. St. Rep. 449; West-
brook V. Mobile etc. R. R. Co., 66 Miss. 560; 14 Am. St. Rep. 587;
Pratt Coal etc. Co. v. Brawley, 83 Ala. 371; 3 Am. St. Rep. 751;
Daley v. Norwich etc. R. R. Co., 26 Conn. 591; 68 Am. Dec. 413: Mc-
Gary v. Loom is, 03 J<. Y. 104; 20 Am. Rep. 510; G. etc. Ry. Co. v.
Moore, 59 Tex. 04; 46 Am. Rep. 265; Huff v. Ames, 16 Neb. 139; 49
Am. Kep. 716; Erie City etc. Ry. Co. v. Schuster, 113 Pa. St. 412; 57
Am. Rep. 471; Bellefontaine etc. R. R. Co, v. Snvder, 18 Ohio St. 399;
98 Am. Dec. 175; Chicago City Ry. Co. v. Robinson, 127 111. 9; 11 Am.
St. Rep. 87; Government etc. R. R. Co. v. Hanlon, 53 Ala. 70; Frick
V. St. Liouis etc. Rv. Co., 75 Mo. 596; Ferguson v. Columbus etc. Ry.,
77 Ga. 102; Baltimore City etc. Ry. Co. v. McDonnell, 43 Md. 534;
Dnnahoe v. Wabasli etc. Ry. Co., 83 Mo, 543; Texas etc. Ry. (Jo. v.
Fletcher. 6 Tex. Civ. App. 736.

Injury to Child ^ Recovery by Infant^ Plaintiff* $ Negligence as a
Defense.^ a an infant is injured by the wrongful act of a third
person, and the negligence of the parent, if any, cannot be im-
}»uted to it, it is clear that the questions in the case are narrowed
down to that of the defendant's negligence and that of the in-
fant's contributory negligence. If the infant is negligent, it cannot^
of course, recover, but the question of determining its liability for neg-
ligence is not without difficulty, as that depends much upon varjring
age. The rule of contributory negligence is not to be applied against
children as it applies against adults. Children must use ordinary care
tu escape injury ; but ordinary care in children is that care which chil-
dren of the same age, of ordinary prudence, generally exercise, under
circumstances of a similar character: Rollinjz Mill Co. v. Corriean, 46
Ohio St. 283; 15 Am. St. Rep. 596; and the degree of care and diligence
required from a rliild of tender years is not as high as that required
from an a«)ult ol pretum^^d judgment and discretion : Fieic • v.Conners,^
20Cal. 178; 46 Am. 6t. Rep. 279. Neither is a very youiig child ez-



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Jane, 1895.] Babneb v. Shbevefobt City R. R. Co. 409

peeted to be as careful ae an older one: Baltimore City etc. Ry. ▼. Mo>
DoniieU, 48 Md. 684; GoTernment Street R. R. Co. v. Hanlon, 68 Ala,
70; CbicMO etc. R. R. Co. v. Marray, 71 Ili. 601; Swift y. Staten lo-
• land etc. R. R. Co., 123 N. Y. 645; Hayes v. Norcroes, 162 Mass. 646;
Wright ▼. Detroit etc. Ry. Co., 77 Mich. 123: and the jury 'a attention
ahould be called to this principle: See case last cited. The rule that
one who sues for damages for a personal injury sustained by defendant's
negligence roust have been free from negligence upon his own part, ap-
plies where the person injured is an infant, except as to one of extremely
tender years and therefore incapable of negligence ; and it has some-
tiroes been held that if the neglect of a child to exercise the degree of
care which an adult of ordinary prudence would use contributed to the
injury, there can be no recovery: Honegsberger v. Second Avenue
R. R. Co., 2 Abb. App. Dec. 378; Wiswell v. Doyle, 160 Mass. 42; S»
Am. St. Rep. 451; Burke v. Broadway etc. R. R. Co., 49 Barb. 529; 34
How. Pr. 239; but to say that children of varying ages are bound to
the same legal rules in regard to the exercise of care and diligence iu
avoiding danger, and escaping the consequences of neglect on the part
of others, which are applied to persons of full age and capacity, is un-
reasonable. All that IS demanded in such cases is a degree of care or
diligence equal to the capacity of the child. In other words, the care
and caution required of the child are such only as chidren of its age
usuall)r exercise, and so the cases hold.

A child of immature years has capacity to exercise only such care and
self-restraint as belong to childhood. A reasonable man must be pre-
sumed to know this and required to govern his actions accordingly.
In all cases the caution required is according to the maturity and capBC-
ity of the child, a matter to be determined in each case by the circum-
stances of that case, and is such only as children of its age usually
exercise: Haynes v. Raleigh Gas Co., 114 N. C. 203; 41 Am. St. Rep»
786; Pekin v. McMahon, 164 111. 141; 45 Am. St. Rep. 114; Pierce v.
Connors, 20 Col. 178; 46 Am. St. Rep. 279, and collected cases; Brink-
ley Car Co. V. Cooper, 60 Ark. 545; 46 Am. St. Rep. 216; Lynch v.
Smith, 104 Mass. 52; 6 Am. Rep. 188; Barrett v. Southern Pac. Co., 91
Cal. 296; 25 Am. St. Rep 186; Ranch y. Lloyd, 31 Pa. St. 358; 72 Am.
Dec. 747; Sheridan v. Brooklyn etc. R. R. Co., 36 N. Y. 39; 93 Am.
Dec. 490; O'Flaherty v. Union Ry. Co., 45 Mo. 70; 100 Am. Dec. 343;
Moebus V. Hermann, 108 N. Y. 349; 2 Am. St. Rep. 440; Cooper v.
Lake Shore etc. Ry. Co., 66 Mich. 261; 11 Am. St. Rep. 482; Railroad
Co. v. Gladmon. 15 Wail. 401; Railroad Co. v. Stout, 17 Wall. 657;
Thurber v. Harlem etc. R. R. Co., 60 N. Y. 326; Schmidt v. Milwau-
kee etc. Ry. Co., 23 Wis. 186; 99 Am. Dec. 158; Union Pac. Ry. Co. v.
McDonald, 152 U. S. 262; Spillane y. Missouri Pac. Rv. Co., Ill Mo.
555 ; Schmitz v. St. Louis etc. Ry. Co., 119 Mo. 256 ; Rockford etc. R. R.
Co. y. Delaney, 82 111. 198; 25 Am. Rep. 308; St. touia etc. Ry. Co. v.
Valirius, 56 Ind. 511 ; McMillan v. B. etc. R. R. Co., 46 Iowa, 281 ;
Thompson v. Buffalo Ry. Co., 145 N. Y. 196; Smith y. O'Connor, 48
Pa. St. 218; 86 Am. Dec. 582; Byrne v. New York etc. R. R. Co.. 83
N. Y. 620; Omaha etc. Ry. Co. v. Cook, 42 Neb. 577, 905; Springfield
etc. Ry. Co. v. Welsch, 155 111. 511; Georgia etc. R. R. Co. v. Evans,
87 Ga. 673; Wabash R. R. Co. y. Jones, 53 111. App. 125; Illinoii etc.
R. R. Co. y. Slater, 129 111. 91; 16 Am. St. Rep. 242; Baltimore City
etc. Ry. v. McDonnell, 43 Md. 534; Eswin y. St. Louis etc. Rv. Co., 96
Mo. 290. Thus an action may be maintained for an injury done by a
dog to a boy thirteen years old, although the boy struck the dog and
thereby incited the dog to bite, and was old enough to know that hia
act would be likely to so incite the dog, if the boy was in the exercise
of Budi care as could reasonably be expected from a boy of his age and
capacity: Plumley v. Birge, 124 Mass. 57; 26 Am. Rep. 645.

A child too youn^ to exercise any care or discretion in any matter
whatever is clearly incapable of contributory neffligence. and not amen*
able to the disablin/ effects of that doctrine. Hence, if the child is of
•ocb extremely tender years that it cannot be deemed capable of exer*



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410 Babneb V, Shbevefobt City R. R. Co. [Louisianai

cising any degree of care as to its personal safety, it will be conclasiyely
presumed incapable of contribatory negligence, and the court will 80
declare the law: Westbrook v. Mobile etc. R. R. Co., 66 Miss. 560: 14
Am. St. Rep. 587; Kay v. Pennsylvania R. R. Co., 65 Pa. St. 269; 3
Am. Rep. 628; Mangam v. Brooklyn R. R. Co., 38 N. Y. 455; 08 Am,
Dec. 66; Schmidt v. Milwaukee etc. Ry. Co., 23 Wis. 186; 99 Am. Dec
158; Pratt Coal etc. Co. v. Brawley, 83 Ala. 371; 3 Am. St. Rep. 751 j
Western Ry. v. Mutch, 97 Ala. 179; 38 Am. St. Rep. 179; Wisewell v.
Doyle, 160 Mass. 42; 39 Am. St. Rep. 451; Haynes y. Raleigh GasCo.,
114 N. C. 203; 41 Am. St. Rep. 786, and note; Bottoms v. Seaboard etc.
R. R. Co., 114 N. C. 699; 41 Am. St. Rep. 799; Summers v. Bergner
Brewing Co., 143 Pa. St. 114; 24 Am. Si. Rep. 518; Guli etc. Ry. Co. v.
McWhirter, 77 Tex. 356; 19 Am. St. Rep. 755. That a child under five
years of age is not capable of contributory negligence is very generally
conceded: Schmidt v. Milwaukee etc. Ky. Co., 23 Wis. 18 5; 99 Am.
Dec. 158; Walters v. C. etc. R. R. Co., 41 Iowa, 71; Kevser v. Chicago
etc. Ry. Co., 56 Mich. 559; 56 Am. Rep. 405; Norfolk etc. R. R. Co. v.
Ormsby, 27 Oratt. 455; Fink v. Missouri Furnace Co., 10 Mo. App. 61;
Hamilton v. Morgan's etc. Co., 42 La. Ann. 824 ; E:ist Saginaw etc. Ry.
Co. V. Bohn, 27 Mich. 503; Chicago etc. R. R. Co. v. Gregory, 58 III.
226; McGarry v. Loomia, 63 N. Y. 104; 20 Am. Rep. 510; Westerfield
V. Levis, 43 La. Ann. (>3. Children six and seven years old have been
held not chargeable with contributory negligence: Central Trust Co. v.
Wabash etc. Ry. Co., 31 Fed. Rep. 246; Texas etc. Rv. Co. v. Fletcher,
6 Tex. Civ. App. 736; Oldfield v. New York etc. R. R. Co., 3 E. D.
Smith, 103; Honegsberger v. Second Avenue R. R. Co., 1 Daly, 89.
As capacity, however, chanties with age, the question of negligence
becomes one for the jury with the increase of years.

It is said in Indianapolis etc. Ry. Co. v. Pitzer, 109 Ind. 179, 58 Am.
Rep. 387, that throughout all branches of the law, whether of tort or
contract, there runs, "like the marking red cord of the British navy, a
line distinguishing children of years too few to have judgment or dis-
cretion from those old enough to possess and exercise those faculties."
But we have not discovered this line. The law, in administering civil
remedies, does not, so far as we have found, fix any arbitrary age when
an infant is deemed capable of exercising judgment and discretion.
From the nature of the case it is impossible to fix an exact period when
a child becomes sui juris. Some children reach the point earlier than
others. It depends upon many things, such as natural capacitv, physi-
cal conditions, training, habits of life, and surroundings. These and
other circumstances may enter into the question. It becomes, therefore,
a quescion of fact for the jury, when the inquiry is material, unless the
child is of such very tender years that the court can safely decide the
fact. And along with this fact the jury, in determining the defendant's
liability for ne&rligence in injuring a child, must pass upon the question
as to the contributory negligence of the child, where it has reached
fiuch an age that it may be capable of exercising some judgment and
discretion. It cannot be asserted as a proposition of law that a child
lust past seven years of age is sui juris, so as to be chargeable with neg-
ligence : nrr does its measure of discretion make any sudden leap at the
age of fourteii), but varies with each additional year, an<i the increase
of respjiiHibility is gradual. Hence, where the question is involved,
the contributory negligence, capacity, intelligence, and discretion of a
child injured by the wrongful act of another person should be submit-
ted to the jury in cases where it is not so young as to be deemed incap-
fible of negligence, or where it has omittecl some act, or done some act,
which must, as a matter of law, be pronounced negligence: Stone v. Dry
Dock etc. R. R. Co., 115 N. Y. 104; Pekin v.McMahon, 154 111. 141; 46
Am. St. Rep. 114; Kehler v. Schwenk, 144 Pa. St. 348; 27 Am. St. Rep.
633; Rodgers v. Lees, 140 Pa. St. 475; 23 Am. St. Rep. 250; Avery v.
Oalveston etc. Ry. Co., 81 Tex. 243; 2t) Am. St. Rep. 809; Gulf etc.
Ry. Co. v. M(!Whirter, 77 Tex. 356; 19 Am. St. Rep. 765; Rhodes v.
Georgia R. R. etc. Co., 84 Ga. 320; 20 Am. St. Rep. 362; Tucker v.



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June, 1895.] Baeinbs v. Shrbvepobt City R. R. Ca 411

New Tork etc. R. R. Co., 134 N. Y, 808: 21 Am. St. Rep. 670; Cook
▼• Houston etc. NaT. Co.> 76 Tex. 868: 18 Am. St. Rep. 62; Strawbridge
T. Bradford, 128 Pa. St. 200; 15 Am. St. Rep. 670; Weatbrook y. Mobile
etc R. R. Cov 66 Miss. 560; 14 Am. St. Rep. 587; Bridger v. Asheville
etc. R. R. Co., 27 8. C. 456; 18 Am. St. Rep. 653, and collected cases in
note thereto; Twist t. Winona etc. R. B. Co.» 39 Minn. 164; 12 Am. St.
Rep. 626; Connolly y. Knickerbocker Ice Co., 114 N. Y. 104; 11 Am.
8t. Rep. 617; Houston etc. Ry. Co. y. Booser. 70 Tex. 630; 8 Am. St.
Rep. 615; Hemmingway y. ChiCMo etc. Ry. Co., 72 Wis. 42: 7 Am. St.
Rep. 823; Hartfleld y. Roper, 21 Wend. 615; 34 Am. Dec. 273; Messen-
ger y. Dennie, 137 Mass. 197; 60 Am. Rep. 295; Pratt Coal etc. Co. y.
Brawley, 83 Ala. 371 ; 3 Am. St. Rep. 751 ; Daley y. Norwich etc. B. R.
Co., 26 Conn. 591; 68 Am. Dec. 413; Birae y. Gardner, 19 Conn. 507;
60 Am. Dec. 261 ; Eswin y. St. Louis etc. Ry. Co., 96 Mo. 290; Chicago
etc. R. R. Co. y. Becker, 76 111. 26; Cassida y. Cregon Ry. etc. Co.,
14 Or. 551 ; laquinta y. Citizens' Traction Co. , 166 Pa. St. 63 ; Jones y.
Utica etc. R. R. Co., 36 Hun, 115; Barry y. New York etc. K. R. Co.,
92 N. Y. 289; 44 Am. Rep. 377; San Antonio Street Ry. Co., 79 Tex.
341 ; Whalen y. Chicago etc. Ry. Co., 75 Wis. 654 ; Gibbons y. Williams,
135 Mass. 333; O'Connor y. Boston etc. R. R. Corp., 135 Mass. 3)2;
Deale^ y. MuIIer, 149 Mass. 432: Rosenberg y. Durfee, 87 Gal. 545;
McGuire y. Chicago etc. Ry. Co.. 37 Fed. Rep. 54; Ridenhour y. Kan-
sas City etc. Ry. Co., 102 Mo. 270; Central R. R. Co. y. Golden, 93 Ga.
610; Crane Eleyator Co. y. Lippert, 63 Fed. Rep. 942. The question
as to whether a child's capacity is such that he may be chargeable with
contributory negligence is properly left to the jury, when he is not so
young as to require the judge to say that he could not contribute to his
injury, nor so old that the presumption must exist, in the absence of
eyideuce to the contrary, that he must suffer the consequences of his
own neglect: Bridger y. Asheyille etc. R. R. Co., 27 S. C. 456; 13 Am. St.
Rep. 653. In Payne y. Chicago etc. R. R. Co., 129 Mo. 405, the rule
was announced that, if from the eyidence there is no doubt as to a
child's capacity to know and ayoid danger in the particular case, the
court should, as a matter of law, determine the question, otherwise it
should be referred to the jury. In New York it is held that the ques-
tion at what age an infant's responsibility for nesligence may be pre-
sumed to commence is not one of fact, but of Taw: Tucker y. New
York Cent. etc. R. R. Co., 124 N. Y. 303; 21 Am. St. Rep. 670. The
age of fourteen is simply the convenient point at which the law changes
the presumption of capacity to avoid danger, and puts upon an infant
the burden of showing his personal want of intelligence, prudence, fore-
sight, or strength usual in those of that age, to excuse his negligence:
Kehler y. Schwenk, 144 Pa. St. 348; 27 Am. St. Rep. 633. But , in the
absence of clear proof to the contrary, an infant of the age of fourteen
years will l)e presumed to have sufficient capacity to recognize and
ayoid danger: Nagle v. Allegheny Valley R. R. Co., 88 Pa. St. 35; 32
Am. Rep. 413. There is, however, no presumption of law that a boy
between ten and fourteen years of age is not capable of exercising such
care as may be requisite for avoiding injury from a railroad train in
motion, whether the train is run negligently or not: Central R. R. etc.
Co. y. Golden, 93 Ga. 510. The contributory negligence that precludes
a minor's recoyery, in those jurisdictions where the doctrine of im-
puted negligence does not prevail, must be that of the minor himself,
and whether it existed or not is a q^uestion for the jury to decide, tak-
ing into consideration the a^e and situation of the minor, and all other
circumstances connected with the case: Western Union Tel. Co. y.
Hoffman, 80 Tex. 420; 26 Am. St. Rep. 759. The question of the in-
fancy of the person injured as affecting the question of contributory
negligence is more minutely discussed in the monographic notes to
Freer v. Cameron, 55 Am. Dec. 676, and Westbrook y. Mobile etc. R. R.
Co., 14 Am. St. Rep. 590-596, on negligence of infant as a bar to recoy-
ery for personal injuries. The following cases show what facts and cir-
cumstances, in actions for injuries to children caused by the wrongful



Digitized by



GooqIc



412 Barnes v. Shrbvefort City R. R. Co. [Louisiana



AcU of third persons throagh varions agencies, constitute rach
tribatory negheence on the part of children as will prevent a reooTery
for damages: Central B. R. y. Brinson, 70 Ga. 207; Sinclair y. Bemdt»
87 111. 174; Atchison etc. R. R. Co. v. Tixld, 54 Kan. 551: Masser v.
Chicago etc. By. Co., 08 Iowa, 602; Johnson v. Chicago, 24 III. App.



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