The Jacksonville Electric Company, a Corporation Under the Laws of the State of Florida, Plaintiff in Error, v. Stanley Adams, by Wright Alexander Adams, his next Friend, Defendant in Error, 50 Fla. 429

Hocker, J. (after stating the facts.) The first three assignments of error involve the same question presented in different modes, viz: whether the supposed negligence of the parents of Stanley Adams — an infant four years and one month old in permitting him to go upon the street in the City of Jacksonville, without a care taker, can be imputed to the said infant, so as to defeat a recovery by him in this action. We say “supposed negligence” for it does not clearly appear under what circumstances Stanley Adams happened to be on the street at the early hour of the morning when he was injured.

We will treat the case upon the theory that his parents were passively negligent in permitting him to be there. The decisions of the courts upon this question are .not uniform. It was held in England in the case of. Lynch v. Nurden, 5 Jurist 797, that the rule of law under which a plaintiff who has contributed to an injury occasioned by the negligence of the defendant can not recover a compensation in damages, does not apply where the plaintiff is a person incapable of exercising ordinary care and caution.

Where, therefore, the defendant’s servant left a horse and cart unattended in a public street, and the plaintiff, a child under seven years of age, climbed on the wheel, and other children urged forward the horse, whereby the plaintiff was thrown to the ground and the wheel fractured his leg, it was held that on these facts the jury were justified in finding a verdict for the plaintiff, if they were of opinion that there was negligence on the part of the servant.” Nothing is said by Lord DEN-MAN, C.

J. who rendered the opinion about the negligence of the parent in permitting the child to be upon the streets unattended. In the case of Waite v. North Eastern Railway Co., Ellis Blackburn & Ellis (96 E. C. L.) 728, the facts were that a grand mother who had charge of a child too young to take care of itself bought two tickets at a railway station for the purpose of the two being conveyed on the railway. While the grand mother and child were on the railway, after the tickets had been bought, the child was injured by an accident caused by the joint negligence of the grand mother and the company’s servants.

It was held that the child could not recover. COGKBURN, C.

J. said: “I put the case on this ground: that when a child of such tender and imbecile age is brought to a railway station, or to any conveyance, for the purpose of being conveyed, and is wholly unable to take care of itself, the contract of conveyance is on the implied condition that the child is to be conveyed subject to due and proper care on the part of the person having it in charge. * * * Here the child was under the charge of his grand mother, and the company inust be taken to have received the child as under her control and subject to her management.” In these views the other judges agreed.

In the case of Lygo v. Newbold, Welsby, Hurstone & Gordon, (9 Exch.) 302, POLLOCK, C. B. says: “The case last put raises a doubt as to the authority of Lynch v. Nurdon, if it be applicable to the case where a child receives an injury from indulging in what is called the natural instincts of a child by getting up behind a gentleman’s carriage, there being no servant there.” And it is said by HOAR, J. in Wright v. Malden and Melrose Railroad Company, 4 Allen (Mass.) 283, that though questioned in Lygo v. Newbold, the case of Lynch v. Nurdin has generally been followed as an authority.

For a discussion of the state of the English law on this question see Beach on Contributory Negligence, secs. 137, 138, 139. In the United States the courts are divided. What is known as the New York rule laid down in Hartfield v. Roper, 21 Wend. 614, established the doctrine that the negligence of the parent contributing to the injury of an infant of tender years, is imputed to the infant and prevents a recovery of damages on behalf of the infant, Massachusetts and some other States have followed this rule. In the case of Robinson v.

Cone, 22 Vt. 213, the New York rule is repudiated and what is known as the Vermont rule was established. A large majority of the' States which have made deliverances upon this question-have -followed the Vermont rule. See Ray’s Negligence-of Imposed Duties, secs. 194, 195 et seq; Chicago City R. Co. v. Wilcox, 138 Ill. 379, 27 N. E. Rep. 899, S. C. 21 L. R. A. 76; and note. In Bishop on Non-Contract Law,, sections 578 to 591, the author discusses these rules at some length. In

section 582, he says: “This new doctrine-of imputed negligence, whereby the minor loses his suit, not only where he is negligent himself but where his father, grand mother or mother’s maid is negligent, is as-flatly in conflict with the established system of the common laws as anything possible to be suggested. The law never took away a child’s property because his father was-poor, or shiftless or a scoundrel, or because anybody who-could be made to respond- to a suit for damages was a negligent custodian of it.

But by the new doctrine after a child has suffered damages which confessedly are as-much- his own as- an estate conferred upon him by gift, and which- he is entitled to obtain out of any one of several defendants who may have contributed to them, he can not have them if his father, grand mother or mother’s maid happens to be the one making a contribution. In these and other respects it is submitted the established principles stated in a preceding

section are conclusive of" the proposition that the doctrine now in contemplation does not belong to the common law.” Mr. Bishop concludes: “It is the better doctrine that the parents contributory negligence does not cut off the child’s claim for' an injury nor does the child’s the parents;” Sec. 591 Id.;; Beach on Contributory negligence, Secs. 140, 141; Newman v. Phillipsburg Horse Car R. Co., 52 N. J. L. 446, 19 Atl. Rep. 1102, S. C. 8 L. R. A. 842, and notes; Government Street R. R. Co. v. Hanlon, 53 Ala. 70; Huff v. Ames, 16 Neb. 139, 19 N. W. Rep. 623.

It seems to be undisputed that where the parent sues for loss of services sustained by an injury to the child then the contributory negligence of the parent may be a bar. Bishop on Non-Contract Law, Bee. 577. It would be prolix to go into a minute examination of the great number of cases' bearing on this question; an examination of the authorities cited will discover them.

We think it enough to say that in •our opinion the weight of reason and authority is with the Vermont rule and that in an action by the child for damages for an injury, the negligence of the parent can ■not be imputed to the child so as to prevent a recovery.

The fourth assignment of error is based on the refusal of the trial judge to give the following instruction to the jury at the request of the defendant, viz: “A child to the extent that he has knowledge and understanding of the -danger, or where the danger is of such a nature as to be obvious even to one of his years, is under a duty under the law to avoid the danger, and if on the track to get off and out of the way of the danger, or if near the track and the car is in plain sight, not to go upon the track in front of the car, and if you believe from the evidence in this case that Stanley Adams had knowledge and understanding of the danger, or the danger was of such a nature ■as to be obvious to one of his years, and the car was in plain sight, and he was on the track, and did not get off •and had time to get off, or was near the track and ran ■upon the same in front of the car, and so near the car as to make it impossible for the car to be stopped before reaching him, your verdict should be for the defendant.” The bill of exceptions states that this, charge was based upon the following state of facts: “That Stanley Adams was a child four years and one month of age at the time of his injuries, and of more than average 'brightness and intelligence, as appeared by the exhibition to the jury, and while on or near the track of the defendant was in a position to see the car approaching, and that from his position at the time of the accident the car would have been in plain sight, and was near the track, and suddenly ran near the car, or so near as to make it impossible to stop the car before reaching him.” This instruction it seems to us was calculated to mislead and embarrass the jury considered as containing several independent conditions and propositions separated by the disjunctive “or”, the existence of any one of which would have required a verdict for the defendant, when only one of them is covered by the predicated statement of facts.

Again, we do not think that the predicated statement of facts warranted the exclusion from the consideration of the jury, under -the law of this State, of all consideration of contributory negligence on the part of the defendant. Granting that this child of four years and one month of age was more than ordinarily intelligent; that he was on or near the track; that the car was in plain sight; that it was his duty to avoid danger, and not to go in front of the car or dangerously near it, still, the measure of his duty should be the discretion of one of his years. Bishop on Non-Contract law, Sec. 590'.

It is not stated that he actually saw the car; that the agents of the company took any precaution to attract his attention, or any measure to prevent his injury though they must have seen him. In the case of Florida Cent. & P. R. Co. v. Williams, 37 Fla. 406, 20 South.

Rep. 558, this court holds that “where steam railroads are laid and operated along or across the streets of populous towns or communities where numerous people of all conditions and descriptions are aggregated or likely to be, it is their duty to operate the dangerous implements used by them with the utmost degree of care, strictly commensurate with the circumstances by which they are there surrounded, in order to avoid injury to others.

But while it is thus the duty of such companies to guard against injury to others with the utmost care, caution and vigilance, there is at the same time a mutual obligation resting upon the public, and each and every of them in the presence of such dangerous surroundings, to exercise such a degree of care, caution and vigilance for their own safety as is commensurate with the known dangers there present.” This case occurred previous to the enactment of

section 1,

Chapter 4071, laws of 1891, which is as follows: “A railroad company shall be liable for any damage done to persons, stock or other property by the running of the locomotives or cars or other machinery of such company, or for damages done ■by any person in the employment and service of such company, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption being in all cases against the company.” In the case of Consumers’ Electric Light & St. R. Co. v. Pryor, 44 Fla. 354, 32 South.

Rep. 797, it was held that this act (Chap. 4071) was applicable to electric street railways, and that while it does not arbitrarily fix liability for an injury done, it does raise a presumption of negligence as arising from the injury done. In the case of Morris v. Florida Cent. & P. R. Co., 43 Fla. 10, 29 South. Rep. 541, this court had occasion to construe this section. It is held that under its provisions what will constitute the amount or kind of diligence that will be required as “ordinary and reasonable” must necessarily vary under different circumstances.

It can not be measured or ascertained by any fixed or inflexible standard because the words just quoted are themselves relative terms, and what under some circumstances would be ordinary and reasonable diligence, might under other conditions amount to even gross negligence.” It is further said that the care and diligence to be used in cases embraced in the statute should be “strictly commensurate with the demands and exigencies of the occasion and with the relationship that the company bears at the time to the party in question.” We think that the motorman should and must have seen the plaintiff on or dangerously near the track, that it was his duty to see him, and seeing that he was of tender years it was 'his duty to use means “strictly commensurate with the demands. and exigencies of the occasion/’ to prevent injuring him.

The presumption is against the defendant, and neither the charge or the facts predicated meets and overcomes this presumption. Bottoms v. Seaboard & Roanoke R. CO., 114 N. C. 699, 19 S. E. Rep. 730, S. C. 25 L. R. A. 784 and notes; Clarke’s Accident Law (Street Railways) Sec. 105; Consumers’ Electric Light & St. R. Co. v. Pryor, supra; Nellis on Street Surface Railroads, pp. 298 and 374, et seq. More care must be used towards children than towards adults, and if in the exercise of due care the motorman should have seen the child and did not, then he was negligent. Clark’s Accident Law, Sec. 104.

We do not think the court erred in refusing to give this charge. The fifth assignment of error is based on the refusal'of the judge to give the following charge, viz:- “Under the law, away from the street crossing, street cars have the right of way on their tracks in the streets over pedestrains and vehicles.” This requested instruction was predicated upon the fact that Stanley Adams was not on a street crossing, but eighty or ninety feet therefrom when injured.

As an abstract question this may be a correct statement of the law, but what particular application of it the jury were expected to make we are not advised. It was calculated to impress the jury that the company had a superior right upon its track, which afforded a complete defense to the defendant, irrespective of its actual or presumptive negligence, or its duties to the plaintiff. If there are several important issues, it is not proper to single out one of them as the controlling issue (11 Ency.

Pl. & Pr. 185) and in this case it is evident that the issue presented in this instruction was not the only or controlling one. The remaining assignments of error are based on the overruling of a motion for a new trial. These can not be considered (by this court inasmuch as the bill of exceptions does not show any exception to the ruling of the court thereon. McDonald v. State, 46 Fla. 149, 35 South. Rep. 72; Parnell v. State, 47 Fla. 90, 36 South. Rep. 165, and cases cited; Dupuis v. Thompson, 16 Fla. 69, text, 73. The judgment of the Circuit Court is affirmed. Taylor and Parkhill, JJ., concur. Shackleford, C.

J., and Cockrell and Whitfield, JJ. concur in the opinion.