O'Brien v. McGlinchy

Peters, J.

This case is before us upon motions to set aside the verdict as against evidence and for newly discovered evidence, and upon exceptions to the rulings of the presiding judge.

The defendant contends that the judge at nisi prius should have ruled, as a matter of law, that it was negligence on the part of the parents of the plaintiff to permit their child three and a half years old to be unattended upon a public street. The judge allowed the jury to decide whether it was negligence or not. Our judgment is that it was not a question so free of doubt as to require the court to take it from the jury. Pacts and circumstances in explanation of the presence of the child upon the street were to be considered, and different minds might draw different conclusions from them. It would be difficult to fix any standard of years as a test for the decision of cases of this kind. Of course there may be extreme cases either way, where the judge’s duty would be to pronounce upon the facts himself instead of submit-ing them to the jury. But where the line is doubtful between the two extremes, it is usually the vocation of the jury to determine the question, under such instructions from the court as may be proper and suitable to the case before them. Kellogg v. Cur *556 tis, 65 Maine, 59. Hobbs v. Eastern Railroad, 66 Maine, 572, 577. Mulligan v. Curtis, 100 Mass. 512 . Lynch v. Smith, 104 Mass. 52 . Brooks v. Somerville, 106 Mass. 271, 275 . Patrick v. Pote, 117 Mass. 297 . Drew v. 6th Avenue Railroad, 26 N. Y. 49 . Mangam v. Brooklyn Railroad, 38 N. Y. 455 . Eckert v. Long Lsland Railroad, 43 N. Y. 502 . Ihl v. Railroad, 47 N. Y. 317 . Blanchard v. Steamboat Co., 59 N. Y. 292 . Proffatt on Jury Trial, §§ 263, 298.

The defendant next contends that this court should decide, under the motion for a new trial, as a matter of fact, in view of all the testimony in the case, that the child was negligently permitted by its parents to be upon the street unattended at the time of the accident. But if the parents were guilty of such negligence, and it be admitted (as it is) that the child is chargeable with the negligence of its parents, still it does not necessarily follow that the child is thereby debarred from a .recovery for the negligence of the defendant. That would depend upon whether the act of the parents, in a proper sense, contributed to the injury or not. In a certain sense, it undoubtedly did contribute to it. That is, the accident could not have happened without it. It made the accident possible. But whether in a legal sense it contributed to it would depend upon all the facts and circumstances.

If the child, at the time of the accident, exercised as much care , and caution as any person of the years of discretion could exercise under the same circumstances, then the parental negligence did not contribute to the injury. It matters not whether the plaintiff was three or thirty years of age, if he managed for his safety while upon the street with the amount of care which the law requires of persons generally. And to this point there are several direct authorities. In McGarry v. Loomis, 63 N. Y. 104 , the head-note of the case is this: “ In an action to recover damages for injuries to a child, non sui jxiris, occasioned by the negligence of defendant, negligence on the part of the parents is no defense, where it appears that the child has not committed or omitted any act which would constitute contributory negligence in a person of years of discretion. Negligence can only be imputed to the child through the parents, but where the child has *557 done no negligent act the conduct of the parents is immaterial.” Lynch v. Smith, 104 Mass. 52 , and other cases are to precisely the same effect. See Bigelow’s Cases on Torts, 730.

In the case supposed, the negligence of the defendant and that of the parents would not operate conjunctively. The conduct of the parents would not be a part of the transaction through which the injury befel the plaintiff, but another transaction prior thereto and distinct therefrom. It may have been the “ agency ” or “ medium ” or “ opportunity ” or “ occasion ” or “ situation ” or “ condition,” as it is variously styled, through or by which the accident happened ; but no part of its real and controlling cause. The fault of the parents would be the remote cause, while that of the defendant would be the proximate or the more proximate cause, the próxima causa or causa causans; the one a passive and the other an active agency ; the one having but a casual and the other a causal connection with the ultimate event.

Generally, it is a defense to an action of tort that the plaintiff’s negligence contributed to produce the injury. But in cases falling within the foregoing description, where the negligent acts of the parties are distinct and independent of each other, the act of the plaintiff preceding that of the defendant, it is considered that the plaintiff’s conduct does not contribute to produce the injury, if, notwithstanding his negligence, the injury could have been avoided by the use' of ordinary care at the time by the defendant. This rule applies usually in cases where the plaintiff or his property is in some position of danger from a threatened contact with some agency under the control of the defendant when the plaintiff cannot and the defendant can prevent an injury. Lord Ellenborough, in Butterfield v. Forrester, 11 East, 60, a much quoted case, declared that “ one’s being in fault will not dispense with another’s using ordinary care.” Blackburn, J., in Radley v. Railroad Co., L. R. 10 Ex. 100, expresses the idea in this wise: “A man is bound, when he puts himself in .a place where he knows other persons are coming, not only for his own safety, but for that of his neighbors, to take reasonable care of himself and of his property ; but, whether he does this or not, it does not relieve anybody else who comes there from the duty of *558 also taking reasonable care.” The following are pertinent authorities hereto. Bigelow v. Reed, 51 Maine, 325. Baker v. Portland, 58 Maine, 199. Garmon v. Bangor, 38 Maine, 443. Keith v. Pinkham, 43 Maine, 501. Norris v. Litchfield, 35 N. H. 271. State v. Railroad, 52 N. H. 528. Trow v. Vt. Central, 24 Vt. 487 . Isbell v. Railroad, 27 Ct. 393. Steele v. Burkhardt, 104 Mass. 59 . Smith v. Conway, 121 Mass. 216, 219 . Mayor, etc. v. Brooke, 7 Q. B. 377. Lygo v. Newbold, 9 Ex. 302, 303. Sher. & Red. on Neg. §§ 25, 36, ei passim. Wharton’s Neg. § 300, ei and numerous citations in notes. But this principle would not govern where both parties are contemporaneously and actively in fault, and by their mutual carelessness an injury ensues to one or both of them ; nor where the negligent act of the defendant takes place first and the negligence of the plaintiff operates as an intervening cause between it and the injury.

And there may be other exceptions. It is impossible to establish rules under which all cases can be arranged, considering the variety of circumstances under which the question of negligence arises. Bigelow’s Torts, 724. Murphy v. Deane, 101 Mass. 455 . Barnes v. Chapin, 4 Allen, 444 . Hibbard v. Thompson, 109 Mass. 286 . See, also, cases and authorities before cited.

The defendant, however, does not admit that the plaintiff stands in the favorable attitude supposed. He claims that upon this point the plaintiff’s case fails. It is true, as contended, there is no evidence of a direct character as to how the accident happened. No one testified to seeing the occurrence. The driver of defendant’s wagon swears that he has no knowledge whatever of running over the child. The jury must have found this testimony to be untrue, or the plaintiff could not have got the verdict. So finding, they were justified in drawing inferences of fact therefrom unfavorable to the defendant. They would have a right to believe that the witness (called by defendant) was wholly in fault in causing the injury, as an explanation of his concealing the truth about it. Therefore it became the important question of the case to decide whether the defendant’s team did actually run *559 over the boy or not. Upon that point the newly discovered evidence satisfies us that a new trial should be granted.

Exceptions overruled; motion sustained.

Appleton, C. J., Walton, Barrows, Libbey and Virgin, JJ., concurred.