19 Conn. 507 (Conn. 1849), Birge v. Gardiner

Citation:19 Conn. 507
Opinion Judge:Church, Ch. J.
Party Name:Birge v. Gardiner.
Attorney:J. H. Hubbard and G. H. Hollister, in support of the motion, Seymour and F. Bacon contra
Court:Supreme Court of Connecticut

Page 507

19 Conn. 507 (Conn. 1849)

Birge

v.

Gardiner.

Supreme Court of Errors of Connecticut.

July, 1849

Though a defendant has been guilty of culpable fault or negligence, producing an injury, yet if his act was not wanton and intentional, and the plaintiff, by his own misconduct or want of ordinary care, essentially contributed to produce the result, he cannot recover.

And in determining whether the plaintiff has been guilty of such misconduct or want of care as will defeat a recovery by him, the tender age of the plaintiff, in connexion with the circumstances of the case, is a material and proper subject of enquiry.

Therefore, where the defendant having set up a gate on his own land, by the side of a lane, through which the plaintiff, a child between six and seven years of age, with other children in the same neighbourhood, were accustomed to pass from their places of residence to the highway, and vice versa; the plaintiff, in passing along such lane, without the liberty of any one, put his hands on the gate and shook it, in consequence of which, it fell on him and broke his leg; in an action for this injury, the court instructed the jury, that if the defendant was guilty of negligence, he was liable for the injury, unless the plaintiff, in doing what he did, was guilty of negligence, or misbehaviour, or of the want of proper care and caution; and in determining this question, they were to take into consideration the age and condition of the plaintiff, and whether his conduct was not the result of childish instinct and thoughtlessness: after a verdict for the plaintiff, it was held, that the charge was unexceptionable.

It seems, that the fact of the plaintiff's being a trespasser in the act which produced the injury complained of, will not necessarily preclude him from a recovery against a party guilty of negligence.

This was an action on the case, alleging, that the defendant, on the 10th day of August 1847, did negligently, carelessly and unlawfully set up and erect a certain gate, of great size and weight, viz. about 15 feet long and 5 feet high, and about 500 pounds weight; and as the plaintiff was afterwards, on the same day, walking over the ground near said gate, as he lawfully might, said gate fell over upon the plaintiff; whereby, and by reason of the carelessness and negligence of the defendant in setting up and erecting the same, the plaintiff was thrown violently upon the ground, and one of his legs was broken, and other injuries were inflicted upon him, in various parts of his body.

The defendant pleaded the general issue, with notice that he should offer evidence to prove, that if the plaintiff had sustained any injury from the falling of said gate, it was induced by his own improper conduct and neglect.

The cause was tried at Litchfield, February term 1849.

On the trial, it was agreed, that at the time of the injury complained of, the plaintiff was a child, between six and seven years of age. It was proved, and not denied, that the gate mentioned in the declaration, was erected upon the land of the defendant, on or near the line of a certain lane, or public passway, leading from the highway back, a few rods, to several dwelling-houses, in which resided as many families, containing eight or nine children, who frequently passed along said lane; that this lane was the common pass-way for all persons passing to and from the highway to and from such dwelling-houses; and that the plaintiff was one of the children dwelling in one of those houses, with his parents.

The defendant claimed to have proved, that a few hours before the injury happened, the plaintiff was playing in said lane, and near said gate; that without the liberty of any person, he put his hands on the gate, and shook it; and that also, at the time of the injury, as he was passing along the lane from the highway to his home, he again, without liberty, put his hands on the gate and shook it, and thereby occasioned it to fall upon him; and if he had not so done, the injury complained of would not have happened. There was no evidence that the plaintiff knew that the gate was insecure.

The defendant thereupon requested the court to charge the jury, that this action could not be sustained.

The court charged the jury, that if the defendant was guilty of negligence, as claimed by the plaintiff; and if the plaintiff was injured, by the falling of the gate; the defendant was liable in this action, unless the jury should find, that the plaintiff, by taking hold of and shaking the gate, and causing it to fall, as claimed by the defendant, was guilty of negligence, or misbehaviour, or the want of proper care and caution. And in determining this question, it was proper for and the duty of, the jury, to take into consideration the age and condition of the plaintiff; whether his conduct was the result of any fault or negligence on his part, and whether it was not the result of childish instinct and thoughtlessness.

The jury returned a verdict for the plaintiff, with 168 dollars, damages; and the defendant thereupon moved for a new trial for a mis-direction.

J. H. Hubbard and G. H. Hollister, in support of the motion, contended, 1. That from the facts disclosed in the...

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