defects in the instructions; for the Court assumed to tell the jury, as matter of law, what constituted negligence, instead of leaving the question of negligence to the jury for their determination. . . . Even as modified and given to the jury, the instructions stated the law more favorably for appellant than it was entitled to have it given, and therefore it has no cause for complaint.

We find no reversible error in the record, and the judgment of the Appellate Court will be affirmed. Judgment affirmed.1

Topic 3. Sundry Incidents and Limitations of the Orthodox Common

Law Rule

SUB-TOPIC A. THIRD PERSON'S NEGLIGENCE IMPUTED TO PLAINTIFF

THIS was an action on the case, tried at the Oneida circuit in May, 1838, before the Hon. Robert MONELL, one of the circuit judges. This suit was brought by the plaintiff, William Hartfield, by his next friend, Gabriel Hartfield, for an injury sustained by being run over, as alleged, by the defendants, with a sleigh and horses, and having his arm broken. In March, 1836, the plaintiff, a child then of about two years of age, was standing or sitting in the beaten track of a public highway, and no person near him. The defendant, Roper, was driving a sleigh and horses upon the same road, and before the child was perceived the horses passed over him. He was discovered by Newell, the other defendant, who was in the same sleigh, and on his exclaiming that a child had been run over, the horses were immediately stopped by Roper and backed, and the sleigh prevented from passing over the child. The injury sustained was very serious; an arm of the child was broken, and he suffered greatly for about two months, and considerable expense was incurred in medical attendance. The jury, under the charge

1 [PROBLEMS:

Is it contributory negligence per se to ride a bicycle at night without a light? (1897, Cook v. Fogarty, 103 Ia. 500, 72 N. W. 677.)

Is it contributory negligence per se to thrust one's arm out of the window when riding in a car? (1903, McCord v. R. Co., 134 N. C. 53, 45 S. E. 1031.) Is it contributory negligence per se to jump from a moving train? (1894, Victor v. R. Co., 164 Pac. 195, 30 Atl. 381.)

NOTES:

"Contributory negligence: Look and listen rule." "Contributory negligence: Look and listen rule.'

(C. L. R., VI, 472.) (C. L. R., VII, 221.)

"Look and listen rule: court and jury." (C. L. R., IX, 737.)]

of the judge, found a verdict against both defendants with $500 damages. The defendants asked for a new trial.

J. A. Spencer, for the defendants.

W. Tracy & W. C. Noyes, for the plaintiff.

By the Court, COWEN, J. The injury to this child was doubtless a very serious misfortune to him. . . . The only question which seems to be open for our consideration is, that of negligence. This respects both parties. It is quite necessary to drive at a moderate pace, and look out against accidents to children and others, in a populous village or city. See M'Allister v. Hammond, 6 Cowen 342, and per Lawrence, J., in Leame v. Bray, 3 East 597. But this accident happened in the country, where was a solitary house; a child belonging to it happening to be in the road, a thing most imprudently allowed by its parents, and what could have been easily prevented by ordinary care..

...

Was the plaintiff guilty of negligence? His counsel seemed to think he made a complete exception to the general rule, demanding care on his part, by reason of his extreme infancy. Is this, indeed, so? A snow path in the public highway is among the last places in this country to which such a small child should be allowed to resort, unattended by any one of suitable age and discretion. The custody of such a child is confided by law to its parents, or to others standing in their place; and it is absurd to imagine that it could be exposed in the road, as this child was, without gross carelessness. . . . At the tender age of two or three years, and even more, the infant cannot personally exercise that degree of discretion, which becomes instinctive at an advanced age, and for which the law must make him responsible, through others, if the doctrine of mutual care between the parties using the road is to be enforced at all in his case. . . . The application may be harsh when made to small children; as they are known to have no personal discretion, common humanity is alive to their protection; but they are not, therefore, exempt from the legal rule, when they bring an action for redress; and there is no other way of enforcing it, except by requiring due care at the hands of those to whom the law and the necessity of the case has delegated the exercise of discretion. An infant is not sui juris. He belongs to another, to whom discretion in the care of his person is exclusively confided. That person is keeper and agent for this purpose; and in respect to third persons, his act must be deemed that of the infant; his neglect, the infant's neglect. And when he complains of wrongs to himself, the defendant has a right to insist that he should not have been the heedless instrument of his own injury. He cannot, more than any other, make a profit of his own wrong. "Volenti non fit injuria." If his proper agent and guardian has suffered him to incur mischief, it is much more fit that the guardian should himself repair the mischief than that he should negligently allow his ward to be in the way of travellers, and then harass them in courts of justice, recovering heavy verdicts for his own misconduct. . . .

It therefore seems to me, that here was a good defence established at the trial, on the ground that the defendants being free from gross neglect, and the plaintiff being guilty of great neglect on his part . . . the injury was a consequence of his own neglect, at least such neglect as the law must impute to him through others.

It follows that a new trial should be granted. The costs should, I think, abide the event; for the judge erred in omitting to nonsuit the plaintiff. . . . New trial granted; costs to abide the event.

648. BERRY v. LAKE ERIE & WESTERN RAILROAD

COMPANY

UNITED STATES CIRCUIT COURT, DISTRICT OF INDIANA. 1895

70 Fed. 679

BAKER, District Judge. This is an action by Pearlie Berry by her next friend, Addie Berry, against the Lake Erie & Western Railroad Company, to recover damages for injuries sustained by her through the negligence and want of care of the defendant. The plaintiff is an infant of the age of seven years, and was injured by a train of the defendant coming in collision with her while she was attempting to pass over the tracks of the railroad where the same crosses a public alley and thoroughfare used by the public for travel in the city of Connersville, Ind. The negligence charged consisted in running its train of cars at the rate of twenty miles per hour, in violation of an ordinance of that city. . . . The defendant has answered the complaint in two paragraphs, First, in denial; secondly, alleging that the plaintiff ought not to have or maintain her action, "because her own negligence, and that of her mother, who had charge of her, in a material degree contributed to bring about such accident." The plaintiff moves to strike out of the answer the words, "and that of her mother, who had charge of her," on the ground that the same are irrelevant and immaterial. In argument it is insisted that the plaintiff, who sues in her own right, for personal injuries sustained by her, cannot be barred or precluded from recovering by the negligence of want of care of her mother. On the other hand, it is maintained that the mother's negligence is imputable to the child, and bars her right of recovery. . . . Where a parent brings an action to recover damages in his own right for injuries to his child, it may be regarded as settled on authority, and in harmony with sound principles, that the negligence of the parent contributing to the injury will preclude a recovery by such parent. And where the child is of such tender years as to be incapable of exercising care for its own safety, it may be that the negligence of the parent who is present in charge of it at the time the injury happens ought to be imputed to the child. This question, however, is not now before the Court, and it declines to express any definite opinion upon it. But

when the parent is not present to exercise care for the child, I cannot assent to the doctrine that when it has been injured by the carelessness and negligence of a third person, it is remediless because the parent has been guilty of negligence in permitting the child to wander from its home.

...

It is said that the helpless infant is intrusted by the divine and human law to the watchful care of its parents while the infant remains of such tender years and immature judgment as to be incapable of exercising care for itself. The child has the right to expect, and it generally receives, sufficient care and protection from the promptings of paternal and maternal love; but where such care is not exercised, or proves insufficient to protect the child, ought it to suffer irreparable injury without redress because the parent, from want of care, has failed to protect it from harm? . . . If a wife, who has intrusted herself to the care of her husband, is injured while riding in a carriage or other vehicle driven by him, through the negligence of a third person, her husband's contributory negligence will not prevent her from recovering damages for her personal injuries. Why should the helpless child, with no power of choice, be in a worse situation than the mother who had the power to select the driver to whose care she would intrust her safety?

...

The rule of imputed negligence as applied to infants incapable of exercising care for their own safety is an anomaly in our jurisprudence. . . . It is yielding to the more enlightened and humane rule which denies the doctrine of imputed negligence in relation to infants incapable of exercising care for their own safety. The doctrine originated in New York in the case of Hartfield v. Roper, [supra, No. 647,] and is still maintained in that jurisdiction. It is followed in Massachusetts, in Gibbons v. Williams, 135 Mass. 333; Casey v. Smith, 152 Mass. 294, 25 N. E. 734; in Maine, in O'Brien v. McGlinchy, 68 Me. 552; in California, in Meeks v. Railroad Co., 52 Cal. 602; in Minnesota, in Fitzgerald v. Railway Co., 29 Minn. 336, 13 N. W. 168; in Maryland, in Railway Co. v. McDonnell, 43 Md. 534; in Kansas, in Railroad Co. v. Smith, 28 Kan. 541; in Delaware, in Kyne v. Railroad Co. (Del. Super.), 14 Atl. 922; in Wisconsin, in Parish v. Town of Eden, 62 Wis. 272, 22 N. W. 399; and in Indiana, in the cases supra. The doctrine is repudiated in Illinois in Railway Co. v. Wilcox, 138 Ill. 370, 27 N. E. 899; in Pennsylvania, in Railway Co. v. Schuster, 113 Pa. St. 412, 6 Atl. 269; in Virginia, in Railroad Co. v. Groseclose's Adm'r, 88 Va. 267, 13 S. E. 454; in Vermont, in Robinson v. Cone, 22 Vt. 213; in Alabama, in Iron Co. v. Brawley, 83 Ala. 371, 3 South. 555; in Tennessee, in Whirley v. Whiteman, 1 Head, 610; in Ohio, in Railroad Co. r. Snyder, 18 Ohio St. 399; Railway Co. v. Eadie, 43 Ohio St. 91, 1 N. E. 519; in Connecticut, in Daley v. Railroad Co., 26 Conn. 591; in Missouri, in Winters v. Railway Co., 99 Mo. 509, 12 S. W. 652; in Michigan, in Shippy v. Village of Au Sable, 85 Mich. 280, 48 N. W. 584; in Nebraska,

in Huff v. Ames, 16 Neb. 139, 19 N. W. 623; in North Carolina, in Bottoms v. Railroad Co., 114 N. C. 699, 19 S. E. 730; in Texas, in Allen v. Railway Co. (Tex. Civ. App.), 27 S. W. 943; in New Hampshire, in Bisaillon v. Blood, 64 N. H. 565, 15 Atl. 147; in Iowa, in Wymore . Mahaska Co., 78 Iowa, 396, [infra, No. 649;] in Mississippi, in Westbrook v. Railroad Co., 66 Miss. 560, 6 South. 321; in Louisiana, in Westerfield v. Levis, 9 South. 52; in Georgia, in Railway Co. v. Gravitt, 20 S. E. 550; in New Jersey, in Newman v. Railroad Co., 52 N. J. Law, 446, 19 Atl. 1109; and in the District of Columbia, in Moore v. Railroad Co., 2 Mackey, 437. There is a general consensus of opinion among modern text-writers in repudiation of the doctrine of imputed negligence in the case of infants of such tender years and immature judgment as to be incapable of exercising care for their own safety.

For these reasons the motion to strike out is sustained, to which the defendant excepts, and twenty days are given within which to file a bill of exceptions.

APPEAL from District Court, Poweshiek County, W. R. Lewis, Judge.

Plaintiff, as the administrator of the estate of Artemus Smith, deceased, seeks to recover damages resulting from the death of decedent, alleged to have been caused by negligence on the part of defendant. After the evidence had been submitted, the jury were directed to return a verdict for the defendant, which they did. Judgment was rendered on the verdict, and plaintiff appeals.

Bolton & McCoy and G. C. Morgan, for appellant.

John F. Lacey and Blanchard & Preston, for appellee.

ROBINSON, J. In August, 1883, Henry Smith, with his family, consisting of his wife, a daughter, and plaintiff's intestate, then about two years of age, attempted to drive over a county bridge of defendant in a wagon drawn by two horses. The bridge fell while the team was on it, and the wagon and its occupants fell to the stream below. The fall resulted in the death of the mother and plaintiff's intestate. The plaintiff claims that at the time in question the bridge was out of repair, and in a dangerous condition, and that defendant is chargeable with knowledge of that fact; that it fell in consequence of that condition; and that decedent did not contribute to the injuries of which plaintiff complains.

I. . . . It is insisted that negligence on the part of the child's parents would be imputable to him. . . . If his parents, by their negligence, contributed to his death, that does not seem to us to be a sufficient