Hargreaves v. Deacon

• Citation: 25 Mich. 1
• Court: Michigan Supreme Court
• Decision Date: 23 April 1872
• Parties: George Hargreaves and another, v. John Deacon, Administrator, etc

25 Mich. 1

George Hargreaves and another, v. John Deacon, Administrator, etc

Supreme Court of Michigan

April 23, 1872

Heard April 12, 1872

Error to Wayne Circuit.

Judgment reversed, with costs, and a new trial granted.

E. C Hinsdale and C. I. Walker, for plaintiffs in error.

S Larned and Henry M. Cheever, for defendant in error.

Campbell J. Christiancy, Ch. J., and Cooley, J., concurred. Graves, J., did not sit in this case.

OPINION

Campbell, J.:

The plaintiff below sued as administrator of his son, a child of tender years, who was killed by falling into a cistern on the premises of plaintiffs in error, which had been, as was claimed, left uncovered. The case has been so presented in this court as to raise but one substantial question, touching the liability for such an injury occurring on private property not immediately adjoining a highway, where the cistern was made for the lawful purposes of the owners, and the injury arose from its being left uncovered, and not from design to harm any one. There being some contradictory testimony, the case is to be regarded, so far as the present record is concerned, upon the theory of the plaintiff below, that the child was permitted to go upon the premises without any special personal permission or invitation to himself, but by a tacit acquiescence of the occupants in not excluding such persons as saw fit to enter them.

The evidence in no way tends to show any right of passage arising out of the existence of a highway. And as it was admitted on the argument that no such highway existed, we need not discuss that point.

An important part of the argument was directed to the situation of the deceased as an infant of such an age that he was entitled to a different degree of care and caution than could be required in favor of older persons. It becomes necessary, therefore, to consider in what way that principle applies.

It will be found that its consideration belongs to such cases as involve a duty on the one hand so to act as not to injure others, and a capacity on the other to use reasonable care to avoid an injury which, by means of such care, would be avoidable. In other words, it involves the doctrine of contributory negligence in all civil cases. In criminal cases it involves, on similar principles, the capacity of the infant to so appreciate his duties and relations to the law and to his fellows, as to be properly chargeable with such criminal blame as none can be guilty of without maturity of judgment, whether dull or bright in intellect.

We cannot hesitate to hold that in all cases where the responsibility of action or self-preservation is involved, it is both absurd and cruel, and plainly unlawful, to expect or demand of any human being judgment or caution not naturally to be expected from persons of his age and capacity. It is equally absurd to make mere intellect any controlling test in such matters. Children may differ very much in quickness, but the habits of caution and reflection come only with time and experience. The law does not prohibit the free agency of minors from any theory that they have not, long before reaching majority, as much knowledge on many subjects as they need. It is because from youth itself, in spite of education and surroundings, there must always be expected a greater liability to business errors, and to imposition, and a greater lack of care in guarding against dangers of all kinds, than experience shows to be likely in manhood. Cases of early maturity are exceptional, and any rule of law, civil or criminal, which treats a child as anything but a child, is in human and barbarous. And any standard of liability which regards knowledge and mere intellectual capacity, without reference to age and the discretion which is to be fairly expected of it, is not a fair standard, and cannot fail to do great wrong.

Counsel for plaintiffs in error did not controvert the justice of this discrimination, and the question of its applicability is the only one arising on this branch of the case.

There is some danger in dealing with these questions, of confounding legal obligations with those sentiments which are independent of the law, and rest merely on grounds of feeling, or moral considerations. We feel, usually, more indignation at wrongs done to children, than at wrongs done to others. But the law has not usually given them civil remedies on any such basis. Nor does it usually, if ever, impose any duties on strangers towards them, resting entirely on the fact that they are children. Those who have any special dealings with them, as parents, teachers, and employers, incur obligations appropriate to their relations, and differing from those incurred towards others in proportion to the necessity of care and protection, and the risk of injury. But those who have no such relations with them are not liable for negligence in carrying on their own business, beyond what would be their liability to others, as well as children, who are equally free from blame.

If, for example, a grown person, coming upon the premises simply by the permission of the occupants, had fallen into this cistern without any negligence, by stepping where there was no apparent danger, he would in law have stood just where this child did. The injury might have happened, as in Fisher v. Thirkell, 21 Mich. 1, from the insecurity of an apparently safe covering. We have searched diligently, and perhaps a little anxiously, to find legal support for a distinction, but there is no foundation for any in law, and we think there is none in any reason which should govern the action of courts of justice.

There is no difficulty at all in holding parties liable for any intentional mischief, however it may be covered up. If they prepare means of destruction for the malicious purpose of destroying life or inflicting injuries, there is no room for the application of the doctrine of negligence, and the act which they mean to bring about is none the less their act because brought about indirectly. If a pitfall is made with the intention of having human beings fall into it, or a spring-gun is set for the purpose of destroying them, or poison is mingled with a spring, or with food, for any similar purpose, fatal results would make the act willful homicide as plainly as if one had been thrust into the pit, or shot, or poisoned directly. But where injury arises to a person from the neglect of one, in doing his lawful business in a lawful way, to provide against accident, the question arises at once whether he was under any legal obligation to look out for the protection of that particular person under those particular circumstances. For the law does not require such vigilance in all cases, or on behalf of all persons.

The cistern in the present case seems to have been made, as is customary, with its top substantially on a level with the earth around it, and as is usual where reservoirs, vaults sewer-openings, and the like are made where there is much occasion for passage, and where an elevation might be inconvenient. Such openings require, for safety, a cover which will bear such pressure as is likely to be brought upon it, and keep passengers from falling in. If in a highway or sidewalk, the duty of protection extends to all persons who have a legal right to go there, or in other words to the whole public, and it depends on that right. If on private property, not open of right to the public, it applies less generally, and only to those who have a legal right to be...